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THE 


NEW  YORK  PRACTICE 


A  TREATISE  UPON 


PRACTICE  AND  PLEADINGS 


'2.ctxonB  anh  Special  |)r0aebingi 


COURTS  OF  RECORD 


STATE   OF  NEW  YORK 


By  JOEL  TIFFANY  and  HENRY  SMITH 

COUXSELOES  AT  LAW 


VOLUME  n 


ALBANY 

WEAEE  0.  LITTLE 

LAW  BOOKSELLER  AND  PUBLISHER 

1865 


-3M-<^0^./<^ 


T 


Entered  according  to  Act  of  Congress,  in  the  year  one  thousand  eight  hundred  and 

sixty-four,  by 

WEARE   C.    LITTLE, 
In  the  Clerk's  Office  of  the  District  Court  of  the  United  States  for  the  Northern  District 

of  New  York. 


Weed,  Parsons  and  Company, 
Stereotypers  and  Printers,  59  State  Street,  Albany. 


TABLE  OF  CONTENTS. 


YOLUME   II 


CHAPTER  I. 

JUDGMENTS  IN"  SPECIAL  CASES. 

Page. 

Foi*  and  against  one  or  more  of  several  parties, 1 

Where  the  liability  is  only  joint,  3,  4,  5 

When  the  equitable  rights  of  the  parties  are  to  be  settled, 4 

In  what  cases  defendant  may  have  affirmative  relief, 4 

Judgment  against  executors,  &c., 6 

Judgment  for  equitable  relief, 6 

What  is  case  of  default  for  want  of  an  answer, 7 

In  actions  for  the  recovery  of  personal  property, 8 

In  actions  for  the  recovery  of  real  property, 9 

In  actions  in  the  nature  of  waste, 10 

In  actions  in  the  nature  of  nuisance, 10 

In  actions  against  corporations, 11 

CHAPTER  II. 

OF  THE  AMENDMENT  OF  JUDGMENTS. 

When  and  how  the  same  may  be  amended, 11 

By  what  court  to  be  ordered, 11 

Where  the  application  to  amend  must  be  made, 11 

Upon  what  grounds  an  amendment  will  be  allowed, 12 

The  Code  does  not  authorize  amendments  correcting  judicial 

errors, 12 


yi  CONTENTS. 

Page. 

How  to  amend  when  the  verdict  is  larger  than  damages  claim- 
ed in  tlie  complaint, 13 

Wlien  the  judgment  may  be  set  aside, 14,  15 

Not  for  mere  teclmical  irregularities, 15 

The  application  to  vacate,  how  made,  and  where, 16 

By  whom  to  be  made,  and  when, 16 

"When  in  case  of  service  of  process  by  publication, 17 

Of  the  satisfaction  of  judgment^  its  discharge^  Sc. 

How  satisfaction  to  be  made  and  entered, 17,  18 

"What  is  a  satisfaction, 18 

"When,  by  a  levy, 18 

"When,  by  another  action,  &c., 19 

"When,  by  payment, '19 

"When,  by  taking  defendant  in  execution, 19 

CHAPTER  HI. 

THE    EXECUTION. 

The  several  kinds  of  executions, 20 

"When  the  execution  may  issue, 20 

"When  an  alias  execution  may  issue, 21 

"When  the  right  to  issue  may  be  suspended, 21 

To  what  county  it  may  issue, 22 

Must  issue  against  property  before  against  the  body, 22 

"When  necessary  to  apply  for  leave  to  issue, 23 

The  form  and  requisites  thereof, 25 

Particular  form  of  the  execution, 26 

Its  dii'ections,  &c., 27 

Against  executors,  administrators,  &c., 27,  28 

"Where  the  judgment  is  against  a  testator  or  intestate  who  has 

since  died,  &c., 28 

Order  of  surrogate  to  be  obtained, 28 

To  whom  the  execution  is  to  be  directed, 29 

Against  attached  property, 30 

Directions  to  be  indorsed  on  the  execution, 31 

Indorsement  by  the  sheriff,  &c., 33 

Effect  of  lodging  the  execution  with  the  sheriff, 34 

"dpon  what  property  to  be  levied, 34 

Property  exempted  from  levy, 36  to  39 

"Who  may  claim  the  privilege, 39 

Lien  of  the  execution, 40 

Effect  of  a  levy,  &c., 42 


This  volume  completes  the  work  according  to  the  original  plan. 
The  Bench  and  Bar  have  suggested  the  importance  of  a  Book  of 
Forms  in  connection  with  the  Practice. 

Acting  on  these  suggestions,  the  publisher  will  issue  early  in 
January,  1865,  a  Book  of  Forms,  as  an  Appendix  to  the  work, 
adapted  to  the  subjects  treated  in  this  and  the  preceding  volume. 


CONTENTS.  Vll 

Page. 

What  constitiites  a  levy, 43 

Executions,  how  become  dormaut, 44 

Custody  of  the  property  levied  upon, 45 

Proceedings  when  the  property  is  claimed  by  a  third  person,  47 

Stay  of  execution  in  the  hands  of  the  sheriff, 48 

The  sale  under,  &c., 49 

What  notice  to  be  given, 50 

Property  must  be  present  at  the  sale,  &c., 50 

Articles  sold  must  be  pointed  out, 50 

When  sheriff  may  not  take  the  highest  bid, 50 

Sale  must  be  at  public  vendue, 51 

And  in  suitable  lots  or  parcels, 51 

Priority  in  case  of  several  executions, 52 

Sale  of  real  estate,  &c., 53 

What  interest  may  be  sold, 53 

The  advertisement  in  such  case, 55 

Must  sell  according  to  his  advertisement, 56 

Must  sell  no  more  than  is  necessary, 56 

Must  sell  in  the  county  where  it  lies, 56 

Certificate  of  sale, ., 57 

Effect  of  sale, 57 

Application  of  the  proceeds  of,  &c., 58 

Right  of  redemption, 59 

By  whom  may  be  exercised, 59 

Mode  of  acquiring  title  of  orginal  purchaser, 61 

When  a  miscalculation  as  to  the  amount  will  not  vitiate, 62 

What  the  affidavit  must  state, 62 

Requisites  to  be  observed  in  such  proceeding, 62 

In  what  funds  the  sheriff  may  receive  payment, 63 

Redemption  by  the  debtor  will  restore  the  lien, 64 

Time  to  redeem  may  be  extended  by  agreement, 65 

Sheriff's  deed, 66 

Its  requisites, 67 

Manner  of  enforcing  judgment  for  the  delivery  of  possession 

of  personal  property, 67 

Arrest  on  execution^ 67 

In  what  cases  allowable, 68 

Order  for  arrest,  &c., 69 

When  and  when  not  necessary, 69 

Pre-requisite  to  issuing  ca.  sa., 72 

What  to  be  stated  in  execution, 72 

Defendant  being  arrested,  how  may  be  discharged, 72 

Committing  defendant  to  jail, 72 

II— B 


viii  CONTENTS. 

Page 

Jail  libovtios,  etc., 73  to  79 

Disfhargo  uiuler  insolvent  laws, 79 

When  discharge  void, 81 

Return  of  the  execution,  when  and  by  whom, 82 

Manner  of  compelling  a  return, 84 

Execution  of  a  decree,  &c., 84 


CHAPTER  ly. 

PROCEEDINGS  SUPPLEMENTARY  TO  EXECUTIONS. 

When  and  how  to  be  instituted, 85 

Before  whom  to  be  instituted, 86 

Nature  of  these  proceedings, 88 

Against  whom  and  in  what  cases, 89 

What  must  appear  to  confer  jurisdiction, 90 

Order  for  an  examination,  how  applied  for, 91 

Who  may  apply, 92 

The  order,  and  by  whom, 92 

Service  of  the  order, 94 

The  examination,  &c., ,». 95 

A  reference,  when  to  be  had, 97 

Examination  of  a  third  party, 99 

Examination  of  witnesses, 102 

What  property  may  be  reached  under  these  proceedings,  ....  103 

Appointment  of  a  receiver,  when  necessary, 104 

Action  by  the  receiver, 106 

Costs, ]  08 

Orders,  how  enforced,  &c., 108 

CHAPTER  V. 

APPEAL,  AND  OTHER  MODES  OF  REVIEW. 

General  observations, 109 

When  an  appeal  will  lie  from  a  judgment  or  an  order, Ill 

Questions  of  fact  not  reviewable  in  the  court  of  appeals, 112 

The  order  must  be  final, 112 

No  appeal  from  order  in  the  discretion  of  the  court, 113 

No  appeal  from  a  determination  made  final  by  statute, 114 

Error  of  fact,  how  reviewed, 114 

Who  may  appeal, 115 

Parties,  how  designated, 115 

Appeal,  how  made, 115 


CONTEIfTS.  IX 
Page. 

What  to  be  reviewed, 116 

When  judgment  is  reversed  or  modified, 116 

Irregiilarities  in  appeal, 117 

Party  dying  pending,  &c.,  how  continued, 117 

When  appeal  is  waived, 117 

Judgment  by  default, 117 


CHAPTER  VI. 

APPEALS  TO  THE  COURT  OF  APPEALS. 

In  what  cases,  &c., 118 

When  the  appeal  must  be  brought, 119 

Notice  of  appeal, 119 

How  served, 119 

The  undertaking, 119 

Its  essential  requisites, 119 

What  necessary  to  a  stay,  &c., 119 

Of  judgment  for  money, 119 

Of  judgment  for  the  delivery  of  documents, 120 

Of  judgment  for  sale  or  delivery  of  real  property, 120 

Of  judgment  for  the  execution  of  a  conveyance, 120 

Extent  of  the  stay, 121 

When  security  may  be  dispensed  with, 121 

Anaount  of,  limited  or  waived, 121 

Undertaking  must  be  filed, 121 

Surety  must  justify, 122 

When  stay,  without  any  undertaking, 122 

In  case  of  perishable  property, 122 

Excepting  to  sureties, 122 

Justification  of  sureties, 123 

Allowance  of  bail, 123 

When  additional  security  required, 124 

Deposit  in  lieu  of  undertaking, 124 

Respondent's  appearance, 124 

Filing  return, 124 

Appellant  failing  to  procure  the  return,  &c., 124 

Time  to  file  return,  how  extended, 125 

Order  for  further  return, 125 

Case  on  appeal, 125 

Printing  and  serving  case, 125 

Relief  from  dismissal, 126 

The  return  or  case  being  imperfect,  what, 126 


X  CONTENTS. 

Page. 

Whore  no  case  is  made  or  served, 127 

Notice  of  argument, 127 

Calendar, 127 

l*rcparation  for  argument, 128 

Calendar  practice, 128 

Submitting  causes, 129 

Argument, 129 

Errors  in  case, 129 

Re-argument, 129 

The  decision  and  remittitur, 130 

Entry  of  judgment, 130 

Appeals  from  orders, 131 

Motions, 131 

Action  upon  undertaking, 131 

Discontinuing  appeal, 131 


CHAPTER  Vn. 

APPEAL  TO  THE   GENERAL  TERM   OF  THE   SUPREME  COURT  FROM   AN 
INFERIOR   COURT. 

From  what  an  appeal  taken, 132 

Time  within  which  to  appeal, 132 

Notice  of  appeal, 133 

Security, 133 

TF7ien  the  appeal  is  from  a  judgment. 

Return  thereof, 133 

Notice  of  argument, 133 

Note  of  issue, 133 

Case  on  appeal, 134 

Points,  &c., 134 

Argument,  what  to  be  furnished, 135 

Decision, 135 

What  errors  reviewable, 135 

Judgment, 136 

Appeals  from  order's. 

From  an  order  of  the  county  court  or  county  judge, 136 

Order  must  be  entered, 137 

Notice  of  appeal,  undertaking,  costs, 137 

When  county  judge  acts  as  justice  of  the  supreme  court,  . .  137 

Preparation  for  argument, 137 

Decision, 137 

Judgment, 137 


CONTENTS.  Xl 

CHAPTER  Vm. 

APPEALS  FROM  SUKKOGATES'  COURTS. 

Page. 

In  all  cases  taken  to  general  term  of  supreme  court, 138 

When  an  appeal  will  lie, 138 

When  to  be  brought, 138 

Who  may  bring  the  appeal, 139 

Manner  of  bringing  the  same, 139 

Bond,  &c., 140 

Stay  of  proceedings, 140 

Petition  of  appeal, 141 

What  it  must  state, 141 

Where  respondent  is  a  minor, 142 

Where  appellant  omits  to  file  petition  of  appeal, 142 

Form  of, 142 

Serving  petition  of  appeal, 143 

Respondent  failing  to  answer,  what, 143 

Dismissal  of  appeal, 143 

Notice  of  appearance,  and  order  that  petition,  &c.,  be  served, . .  144 

Answer  thereto, 144 

Return, 144 

Form  of  answer  to,  &c., 144 

Compelling  a  return, 145 

Failure  to  procure  a  return, 145 

Defective  return, 145 

Hearing  appeal, 145 

Determination  of  appeal, 146 

Costs,  judgment  and  appeal,  &c., 147 

CHAPTER  IX. 

APPEALS  LN"  THE  SUPRE5IE  COURT,  SUPERIOR  COURT  AND  COURT  OF 
COMMON  PLEAS,  FROM  A  SINGLE  JUDGE  TO  THE  GENERAL  TERM. 

From  judgments, 147 

When  must  be  brought, 148 

Notice  of  appeal, 149 

Security,  stay  of  proceedings, 149 

How  brought  to  a  hearing, 150 

Motion  to  dismiss, 150 

Hearing  and  determination, 150 

How  determined, 152 

Costs, 152 


Xii  COKTENTS. 

Page. 

Jiulgmeut,  and  coercing  the  entry  thereof. 153 

Appeals  from  orders. 

When  such  appeal  lies, 153 

Within  what  time  to  appeal, 154 

Notice  thereof,  when  and  how  given, 154 

How  prepared  for  a  hearing, 154 

How  determined,  and  what  is  determined, 155 

Costs,  &c., 155 

CHAPTER  X. 

CASE  AND  EXCEPTIONS. 

Definition  of  a  case, 156 

Bill  of  exceptions  mider  the  former  practice, 156 

How,  under  the  present  practice, 156 

In  what  cases  a  case  must  be  made,  &c., 156 

When  a  case  for  a  new  trial, 156 

What  it  should  contain, 156 

When  the  case  should  contain  exceptions, 157 

When  the  trial  is  by  judge  or  referee,  what  to  contain, 157 

A  special  case,  what, 157 

Case,  when  and  how  made, 157 

Pages  and  lines  to  be  numbered, 157 

Copy  to  be  served  on  opposite  party,  and  when, 157 

Amendments  of  case,  how  prej^ared  and  served, 157,  159 

Notice  of  settlement,  when  given, 157 

Party  submitting  case  for  settlement  to  mark  thereon  his  al- 
lowance or  disallowance  of  amendments, 157 

Settlement  of  the  case, 158 

Power  of  the  judge  therein, 158 

The  settlement  is  a  judicial  act, 158 

Judge  dpng  before  settlement,  what, 158 

Case,  how  waived, 158 

When  deemed  settled, 158 

Time  may  be  extended, 158 

Fihng  case  and  its  effect, 158 

Resettlement  of  the  case, 159 

CHAPTER  XI. 

CONTEMPTS,  AND  PUNISHMENTS  AS  FOR  CONTEMPTS. 

The  power  of  the  court  to  punish,  &c., 159 

In  what  case  these  proceedings  apply,  <fec.,  . .  • 159 


CONTENTS.  XIU 

Page. 

The  punishment  is  in  the  discretion  of  the  court, 159 

The  requisites  of  the  commitment, 159 

Proceedings  as  for  contempts  to  enforce  civil  remedies, 161 

In  what  cases,  and  what  persons, 161,  162 

What  is  necessary  to  justify  proceedings  as  for  contempts  as  a 

civil  remedy, 162 

The  fine  to  be  imposed  in  such  cases, 162 

Where  it  is  for  disobeying  an  order  to  pay  money, 163 

Or  for  disobeying  other  orders, 163 

What  constitutes  disobedience, 164 

Tlie  manner  of  proceeding  in  these  cases, 165 

The  first  requisite  necessary, 165 

What  notice  of  the  order  is  sufficient, 165 

How  far  bound  by  an  informal  notice, 166 

What  courts  may  institute  these  proceedings, 166 

Authority  of  a  referee,  &c., 166 

The  proceeding  when  the  contempt  is  not  committed  in  the 

immediate  presence  of  the  court, 167 

The  application  must  be  based  on  affidavits, 167 

Contents  thereof, 167 

Copy  of  affidavits  must  be  served  on  the  accused, 167 

The  two  methods  of  proceeding, 167 

1.  By  attachment, 167 

2.  By  order  to  show  cause,  &c., 167 

When  by  attachment,  what  is  necessary, 167 

The  order  therefor, 167 

The  proceedings,  how  entitled, „ 167 

The  attachment,  how  directed, 167 

What  to  be  indorsed  thereon  by  the  clerk, 168 

When  no  sum  is  named  by  the  judge,  what  bail  to  be  given,. .  168 

When  a  special  order  of  the  court  for  an  attachment  unneces-  167 

sary, 168 

When  habeas  corpus  necessary, 169 

Bond  to  be  returned  with  attachment, 169 

Failure  to  do  so  liable  to  attachment, 169 

Proceedings  on  the  appearance  of  defendant, 169 

Proceedings  where  the  bond  is  ordered  to  be  prosecuted,  ....  170 

When  the  bond  is  prosecuted  by  the  attorney-general, 170 

Order  to  show  ccmse, 170 

Proceedings  thereunder, 170 

Of  the  filing  of  interrogatories, 171 

When  to  be  filed, 171 

Confined  to  the  subject  matter, 171 


Xiv  CONTENTS. 

Page, 

Copies  to  be  served  upon  the  defendant, 172 

Defendant  must  answer  them, 172 

Time  for  answering,  how  fixed, 172 

Neglecting  or  refusing  to  answer,  what, 172 

Having  answered,  reference  may  be  ordered, 172 

If  answer  is  insufficient,  may  be  sent  back, 173 

Proceedings  Avhere  defendant  is  found  guilty, 173 

The  power  of  the  court  in  the  premises, 173 

The  amount  of  the  fine, 173 

When  the  fine  is  limited  to  two  hundred  and  fifty  dollars,. . . .  173 

When  defendant  to  be  imprisoned  until  performance, 174 

When  fine,  &c.,  is  independent  of  any  loss, 174 

Suit  on  bond., 174 

What  the  complaint  must  show,    , 174 


CHAPTER  XII. 

THE  ACTION  OF  QUO  WARRANTO. 

Proceedings  by  information  in  the  nature  of,  &c.,  abolished, . .  1  75 

The  action  of, 175 

Against  corpoi'ations, 175 

How  brought, 175 

In  what  cases, 175 

Leave  to  bring  the  same,  how  obtained, 17G 

Notice  of  application  to  be  given  in  the  discretion  of  the  court,  1 76 

The  practice  in  such  action, 176 

The  summons  to  be  issued  and  served, 176 

When  the  court  to  direct  the  manner  of  the  same, 176 

When  process  might  be  dispensed  with, 176 

What  judgment  in  case  of  forfeiture, 177 

The  power  of  the  court  to  restrain  after  judgment, 177 

Action  against  individuals, 178 

In  Avhat  cases, 178 

When  the  name  of  the  relator  must  be  joined, 178 

Judgment  in  such  actions, 179 

The  nature  of,  &c., 179 

The  efiect  thereof  upon  the  person  entitled, 180 

The  duty  of  the  relator  thereupon, 180 

Defendant  must  deliver  up  on  demand  books,  &c., 180 

Refusing  to  do  rao,  how  proceeded  against, 180 

The  complaint  in  such  proceedings, 181 

Duty  of  officer  in  proceedings  on  an  order  to  show  cause, ....  181 


CONTENTS.  XV 

Page- 
Action  to  vacate  a  patent, 182 

When  sustainable, 182 

Duty  of  the  attorney-general  in  respect  thereto, 182 

CHAPTER  Xni. 

OF  MANDAMUS  AND  PROHIBITION. 

Mandamus,  general  observations, 183 

Writ  to  be  issued  in  the  discretion  of  the  court, 183 

Not  to  issue  in  case  of  doubtful  right, 183 

Legal  right  must  be  clearly  established, 183 

Must  appear  to  be  no  other  legal  remedy, 183 

Granted  only  for  public  purposes, 183 

Not  to  be  issued  when  unavailing, , 183,  184 

It  lies  to  compel  the  performance  of  ministerial  acts, 1 84 

Will  lie  to  compel  the  exercise  of  discretionary  power, 184 

But  not  to  control  the  discretion, 184 

In  general  will  not  interfere  with  the  practice  of  inferior  courts,  1 84 

Against  whom,  and  when  it  will  lie, 184 

Against  inferior  courts, 185 

When  and  in  what  respect, 185 

When  directed  to  judicial  officers,  what  the  mandate, 185 

Against  corporations, 186 

For  what  purpose, 186 

Even  where  a  legal  remedy  exists, 186 

Against  officers, 187 

When  and  for  what  purpose, 187 

Against  what  officers, 187,  188 

Against  supervisors  of  county, 187 

Of  the  city  and  county  of  New  York, 188 

Commissioners  of  highways, 188 

Overseers  of  the  poor,  &c., 188 

The  writ,  when  allowable  generally, 188,  189 

As  against  the  attorney-general, 189 

When  to  restore  an  individual  to  an  office, 189 

When  inappropriate  as  a  remedy, 189 

When  quo  warranto  the  proper  remedy, 189 

Against  private  persons, 1 90 

When  the  right  to  exercise  an  office  is  withheld, 190 

To  compel  trustees  to  induct  their  pastor, 190 

To  compel  a  medical  society  to  restore  a  member,  &c., 190 

The  writ  and  the  proceedings  thereon, 190 

II— C 


Xvi  COXTEXTS. 

Page. 

Wlien  the  peremptory  writ  will  be  granted, 190 

When  the  alternative  instead, i90,  1 91 

Order  to  sliow  cause  is  the  usual  practice, 191 

Proceedings  in  such  cases, 191 

Appeal  may  now  be  had, 191 

Applications  for  the  writ, 191 

The  affidavit,  what  it  should  state,  &c., 191,  192 

Deficiency  in,  how  cui-ed, 192 

The  affidavit  should  not  be  entitled, 192 

The  application  made  at  special  term  of  supreme  court, 193 

May  be  made  ex  j)arte, 193 

The  order  granting  the  writ, 193 

The  alternative  mandamus, 193 

To  whom  directed, 193 

Wliat  it  should  recite, 193 

It  is  in  the  nature  of  a  declaration, 194 

Must  state  clearly  the  title  of  the  relator, 194 

It  must  set  out  the  duty,  the  performance  of  which  it  com- 
mands,    195 

How  the  writ  is  served, 196 

"When  to  be  served, 196 

When  it  may  be  amended, 196 

May  not  be  amended  after  return, 196 

Motion  to  quash  or  set  aside  the  writ, ^- 196 

In  the  nature  of  a  demurrer, 196 

If  further  time  to  make  defense  is  desired, 197 

If  defendant  fails  to  make  return,  what, 197 

Against  whom  the  attachment  is  granted  in  such  cases, 197 

How  members  of  town  council  render  themselves  liable  for 

disobedience,  197 

Return  of  the  wiit, 198 

Same  as  defendant's  answer  of  plea, 198 

Must  set  up  his  defense  therein, 198 

May  set  up  several  matters  of  defense,  &c., 198 

Such  matters  must  be  consistent  with  each  other, 198 

Only  answer  the  allegations  of  the  writ, 198 

Return  may  be  amended  as  an  answer, 199 

Being  defective  on  its  face,  may  be  quashed, 199 

The  motion  to  quash  is  a  demurrer, 199 

The  rules  of  pleading  apply  to  ^C7'U  and  return  as  to  declaration 

and  plea, 199 

The  issue  how  formed, 199 

The  practice  as  laid  down  by  Sutheelaud,  Justice, 199 


CONTENTS.  Xvii 

Pa^e. 

The  practice  generally, 200 

Plea  and  demurrer, 200 

The  issues  I'aised,  &c., 201 

How  raised, 201 

Issues  of  fact  to  be  tried  by  jury  at  circuit, 201 

Preparation  and  mode  of  trial, 201 

Judgment  upon  the  finding  of  the  jury, 201 

Can  be  entered  only  by  special  order,  &c., 201 

The  finding  and  judgment, 202 

Peremptory  mandamus  to  be  granted  without  delay, 202 

But  upon  motion  to  the  court, 202 

It  is  as  judgment  on  motion  for  the  same, 202 

Either  an  enumerated  or  non-enumerated  motion,  in  the  option 

of  the  relator,  except,  &c., 202 

To  be  noticed  for  special  term, 202 

Costs  in  these  proceedings, 202 

The  writ,  how  enforced, 202 

Appeal, 

Prohibition^  the  writ  of^ 203 

The  object  of  the  writ  of  prohibition, 203 

Its  oflice,  &c., 204 

By  whom  to  be  issued, 204 

Does  not  lie  to  ministerial  oflicer, 204 

To  whom  directed, 204 

The  effect  of  its  issue  and  service, 204 

Its  manner  of  service  and  return, 204 

May  be  served  upon  the  court  and  party,  &c., 204 

Relator  may  be  required  to  demur  or  plead, 204 

On  failure  to  plead,-'&c.,  may  be  noticed  for  hearing, 205 

5n(\.s;mQU%  for  prohibition  absohcte^ 205 

Or  for  a  writ  of  consultation, 205 

Amendments  may  be  made,  &c., 205 

May  appeal,  &c., 207 

CHAPTER  XIY. 

HABEAS  CORPUS  AND  CERTIORARI. 

General  observations, 206 

The  office  of  the  writ, 206 

Who  are  not  entitled  thereto, 206 

It  is  demandable  as  of  right, 206 

Yet  appellate  in  its  character, 207 

What  may  be  inquired  into,  under  it, 205 


Xviii  CONTENTS. 

Page. 

Wlien  it  is  the  proper  remedy,  &c., 207 

When  it  is  not,  &c., 207 

The  application  for  the  writ, 208 

To  whom,  by  whom  and  how  made, 208 

When  an  officer  out  of  the  county  may  grant  it, 208 

Upon  what  proof, 208 

What  officers  restricted  to  the  county  where  the  prisoner  is 

detained, 208 

Application  to  the  supreme  court  may  be  made  in  any  county 

in  the  state, 208 

What  the  petition  for  the  writ  must  contain, 209 

When  to  be  issued  without  petition, 209 

Form  of  the  writ,  &c., 209 

To  whom  directed, 210 

Must  state  the  place  of  return, 210 

In  case  of  infants,  &c., 210 

Must  be  to  the  supreme  court, 210 

Must  be  under  the  seal  of  the  court  awarding  it, 211 

If  returnable  before  somebody  not  a  court,  &c.,  it  must  be 

under  the  seal  of  the  supreme  court, 211 

The  indorsement, 211 

May  be  amended, 211 

Defect  of  form  does  not.  excuse  disobedience, 212 

How  the  person,  &c.,  may  be  designated, 212 

The  form  of  the  writ  of  certiorari  in  such  case, 212 

How  and  by  whom  the  writ  to  be  served, 212 

Duty  of  the  person  served, 213 

Proceedings  in  case  of  disobedience, 213 

The  issuing  of  an  attachment,  &c., 213 

Bringing  of  defendant  before  the  court, 213 

A  further  precept  to  bring  the  party,  for  whose  benefit  the 

habeas  corpus  was  issued,  before  the  court, 214 

Return  of  the  habeas  corpus, 214 

What  it  must  state, 214 

What  must  be  returned, 214 

The  body,  &c.,  must  be  produced, 215 

Or  an  excuse  for  the  non-production  thereof, 215 

Return  may  be  amended, 215 

Proceedings  after  the  return  thereof, 215 

Notice  to  other  parties, 215 

When  district  attorney  to  be  notified, 216 

The  examination,  &c., 216 

The  duty  of  the  court,  &c., 216 


CONTENTS.  XIX 

Page. 

Upon  wliat  conditions  prisoner  may  be  discharged, 217 

Limit  of  the  authority  of  the  court, 217 

Party  not  to  be  discharged  for  mere  irregularity  in  commit- 
ment, (fcc, 217 

What  may  be  inquired  into  on  the  return  of  the  writ, 218 

What  may  not  be, 219 

Question  of  jurisdiction  is  always  open, 219 

What  may  be  denied  by  the  party  before  the  court, 220 

The  evidence,  &c., 220 

How  far  prior  decisions  conclusive,  &c., 220 

Penalty  for  concealing  person  to  elude  the  service  of  the  writ 

of  habeas  corpus, 221 

Or  for  obstructing  service  generally, 221 

Proceedings  in  respect  to  infants, 222 

Courts  act  in  virtue  of  inherent  chancery  powers, 222 

Infant  is  under  the  guardianship  of  the  court, 222 

May  be  awarded  to  father  or  mother  when  they  are  living  sepa- 
rate,    222 

Circumstances  will  be  considered  in  such  determination, 222 

The  good  of  the  infant  the  object,  &c., 222 

Its  wishes  to  be  consulted,  when, 222 

Habeas  corpus  is  not  the  writ  to  try  the  right  of  parents  or 

guardians  to  the  custody  of,  &c, , 222 

Statutory  provisions  in  respect  to  infants,  &c., 222 

Application  for  the  writ  is  addressed  to  the  supreme  court  and 

allowable  in  its  discretion, 222 

Special  provisions  for  the  wife's  application,  &c., 222 

Interest  of  the  infant  to  be  regarded, 223 

When  husband  or  wife  have  attached  themselves  to  the  shakers,  223 

When  the  child  is  concealed,  tfec, 223 

Which  parent  has  the  right  of  custody,  tfcc, 224 

When  the  writ  should  be  certiorari, 225 

The  proceedings  thereupon, 225 

When  a  writ  of  discharge  granted, 226 

Proceedings  when  the  person  detained  is  entitled  to  bail,  ....  226 

The  recognizance,  how  to  be  taken, 226 

Effect  of  such  discharge, 226 

Penalty  for  recommitting  for  same  cause, 227 

What  not  deemed  same  cause, 227 

Where  person  detained,  cannot  be  brought  in  by  reason  of 

sickness,  &c., 227 

Provisions  of  the  statute  applicable  to  the  writ  of  certiorari  in 

such  cases, 227 


zx 


CONTENTS. 


The  certiorari,  how  brought  to  a  hearing, 228 

Appeals  in  these  cases, 228 

Habeas  corpus  ad  testificandum, 229 

CHAPTER  XV. 

CERTIOKARI. 

The  office  of  such  writ, 230 

The  jurisdiction  of  the  supreme  court  in  such  cases, 230 

What  proceedings  may  be  thus  i-eviewed, 230 

The  granting  of  the  writ  is  discretionary, 231 

Where  the  statute  gives  the  remedy,  the  writ  issues  of  course,  231 

The  writ  of,  how  applied  for, 231 

Where  applied  for, 231 

The  nature  and  requisites  of  the  writ, 232 

By  whom  prosecuted, 232 

To  whom  directed, 232 

Motion  to  quash  or  supersede  the  writ, 232 

Its  eifect  to  stay  proceedings, 233 

The  return  thereof, 233 

What  should  be  returned, 233,  234 

What  inferior  magistrates  must  show, 234 

The  return  must  be  taken  as  true, 234 

Hearing  upon  the  return, 235 

The  determination,  &c., 235 

Judgment, 236 


CHAPTER  XVI. 

OF   ARBITRATIONS. 

What  is  an  arbitration, 236 

How  constituted, 236 

Submissions  may  be  in  writing  or  by  parol, 236 

When  parol  submission  valid, 236 

When  the  provisions  of  the  statute  are  applicable, 236 

Submissions  under  the  statute,  tfec, 237 

Who  may  submit  matters  to  arbitration, 237 

Married  women, 238 

Corporations  (railroad  companies), 238 

The  general  rule  upon  the  subject, 238 

What  matters  may  be  submitted, 238 


CONTENTS.  XXI 

Paf^e. 

What  may  not  be  submitted, 238 

The  submission  and  its  authority, 239 

What  may  not  be  submitted  by  parol, 239 

The  submission  may  be  general  or  special, 240 

When  general, 240 

When  sjiecial, 240 

Of  the  construction  of  the  submission, 240 

Of  the  revocation  thereof, 241 

Under  seal,  how  revoked, 241 

Who  may  revoke, 241 

Effect  of  revocation  under  the  statute, 242 

,1^6  arbitratoi's  and  umpire, 242 

The  difference  between  an  arbitrator  and  an  umpire, ".  242 

Their  respective  duties  and  authority, 242 

How  they  must  act, 243 

What  notice  to  be  given, 243 

When  the  umpire  may  be  appointed, 243 

Unnecessary  to  show  disagreement  to  justify  appointing  an 

umpire, 243 

Objections  to  arbitrators  known  at  the  time  of  their  appoint- 
ment are  waived, 243 

Otherwise  when  the  objections  were  unknown, 243 

Authority  of  the  arbitrators  ceases  after  the  award  is  made, . .  243 

Also  when,  having  disagreed,  they  have  appointed  an  umpire,  243 

When  the  appointment  of  an  umpire  must  be  under  seal, 243 

Testimony  of  the  arbitrators, 244 

Proceedings  on  the  submission, 244 

Arbitrators  must  be  sworn  (under  the  statute), 244 

Unnecessary  at  common  law, 244 

Permitting  them  to  proceed  without  being  sworn  waives  the 

objection,   244 

Tim  examination  of  witnesses^ 245 

How  compelled  to  appear, 245 

Arbitrators  may  recall  witness  in  the  absence  of  the  parties, . .  245 

The  hearing^ 245 

Parties  must  have  an  opportunity  to  be  heard, 245 

After  an  award  notice  will  be  presumed, 245 

Arbitrators  must  meet  together, 245 

To  that  end  they  must  all  be  notified, 245 

The  fact  of  their  meeting  must  apj^ear, 245 

Must  act  in  good  faith, 246 

Are  judges  of  what  testimony  is  proper, 246 


Xxii  CONTENTS. 

Page. 

Must  not  refuse  to  hear  testimony  that  is  material  and  perti- 
nent,    246 

Tlie  award, 246 

Must  be  in  writing, 246 

All   need  not  concur  in   the  decision  unless  the  submission 

require  it, 246 

The  award  must  be  in  pursuance  of  the  submission,  &c., 246 

Having  made  their  award,  their  authority  is  at  an  end, 246 

A  second  one  would  be  void, 246 

Award  under  the  statute, 247 

When  the  award  must  be  made, 247 

The  making  thereof  is  a  judicial  act, 24; 

Void  if  made  on  Sunday, 247 

Date  of  the  award  not  conclusive  as  to  time, 247 

Need  not  be  delivered  within  the  time,   247 

If  made  and  ready  for  delivery,  sufficient, 247 

Must  be  ready  for  both  parties, 248 

Should  be  prepared  by  duplicates, 248 

By  whom  made, 248 

If  not  made  under  the  statute,  all  the  arbitrators  must  concur 

therein,  unless,  &c., 248 

The  submission  may  provide  for  the  concurrence  of  the  ma- 
jority, impliedly, 248 

Award  by  an  umpire  not  injured  by  the  advice  of  an  arbitra- 
tor,   , 249 

Authority  of  the  arbitrators  in  making  their  award, 249 

The  aw'ard  must  be  complete, 250 

It  will  be  presumed  to  be  so, 250 

It  must  be  certain  to  a  common  intent, 251 

What  is  sufficiently  certain, 251 

If  any  necessary  uncertainty  as  to  its  requirements,  it  is  bad, . .  251 

It  must  be  final, 252 

It  must  be  mutual, 252 

The  form  of  the  award, 252 

The  interpretation  thereof, 253 

The  effiict  of  any  void  part  thereof, 254 

When  it  must  vitiate  all, 254 

Effect  of  the  award, 254 

Proceedings  after  the  award, 254 

Confirmation  thereof, 254 

Judgment  thereon, 254 

Proceedings  to  vacate  an  award, 255 

For  what  causes  it  may  be  vacated, 255 


CO  K  TENTS.  XXlll 

Pago. 

What  may  be  considered  in  such  proceedings, 255 

May  be  modified  or  corrected  on  motion,  when, 255 

"When  and  where  the  application  must  be  made, 256 

The  power  of  the  court  thereon, 256 

Record  of  judgment  on  award, 256 

Record  to  be  filed  and  docketed, 256 

Appeals,  &c., 257 

To  what  court  taken, 258 


CHAPTER  XVn. 

OF  THB  FOBECLOSUBE  OF  MOBTGAGES  BY  ADVEBTISEAIENT. 

Foreclosure  and  sale, 259 

The  nature  of  the  proceeding, 259 

Wbo  may  execute  such  mortgage,  &c., 259 

Who  may  foreclose  the  same, 260 

Who  must  join  therein, 260 

Requisites  of  such  foreclosure, 260 

The  nature  of  the  equity  of  redemption, 261 

Who  entitled  to  redeem, 261 

Notice  of  such  foreclosure, 261 

Its  requisites,  and  how  given, 261,  262 

Omission  to  comply  therewith  fatal, 263 

Length  of  time  such  notice  must  be  published, 263 

How  published, 263,  264 

Must  be  in  the  newspaper, 264 

Be  affixed  on  the  outer  door,  &c., 264 

Also,  in  the  book  prepared,  &c., 264 

Must  be  served  upon  the  mortgagor,  &c., 264 

Where  to  be  published, 264 

When  in  the  state  paper, 265 

Upon  whom  to  be  served, 265,  266 

Also  upon  the  heirs, 265,  266 

How  served, 267 

When  service  may  be  dispensed  with, 267 

When  service  through  the  mail, 267 

Postponement  of  sale, , ' 268 

What  notice  sufficient, 268 

The  sale  must  be  at  auction,  &c., 268 

How  conducted,  &c.,   268 

Manner  of  selling, 269 

Must  be  pursuant  to  the  authority  given, 270 


Xxiv  CONTENTS. 

Page. 

The  principles  governing  in  such  cases, 270 

Sale  void  unless  notice  is  given, 270 

"Who  may  purchase, 270 

Payment  of  mortgage  extinguishes  the  power  to  sell, 270 

Surplus  money  aiising  from  the  sale, 271 

Effect  of  such  sale, 271,  272 

Void  as  to  parties  without  notice, 272 

Affidavit  of  sale,  when  necessary, 273 

The  provisions  of  the  statute  in  respect  thereto, 273 

How  taken  and  certified, 273 

When  a  substitute  for  a  deed, 274 

Costs  in  such  cases, 275 

CHAPTER  XVIH. 

ADMEASUBEMENT    OF   DOWEK. 

By  petition  under  the  statute, 276 

To  what  courts  to  apply, 276 

How  served,  tfec, 276 

Remedy  of  tenants  in  such  cases, 277 

Appointment  of  guardians  in  such  cases, 277 

The  heirs  may  likewise  apply  for  admeasurement, 278 

Order  of  admeasurement, 278 

Appointment  of  commissioners  for  that  purpose, 278 

Proceedings  before  the  surrogate, 278 

Oath  of  the  commissioners, 279 

Commissioners  dying,  &c.,  others  may  be  appointed, 279 

How  they  are  to  execute  their  duty, 279 

Modes  of  assigning,  &e., 280 

Enlarging  the  time  of  the  commissioners, 280 

Their  report,  &c., 280 

Effect  of  admeasurement, 281 

Ejectment  to  recover  dower  admeasured, 281 

How  the  plaintiff  should  declare, « 281 

Action,  how  commenced, 281 

Appeals,  to  what  court, 281,  282 

When  to  be  filed, .* 282 

Papers  to  be  certified, 282 

When  to  be  heard  and  how  brought  on, 282 

What  to  be  done  on  reversing  the  admeasurement,  &c., 283 

What,  on  aflSrmance, 283 

Costs  in  these  proceedings, 283 


CONTENTS.  XXV 


CHAPTER  XIX. 

GENERAL   LIEN  LAW  OF   MECHANICS,    ETC.,    NOT   APPLICABLE   TO  THE 
CITY  AND  COUNTY  OF  NEW  YORK  AND  THE  COUNTY  OF  ERIE. 

Page. 

In  what  cases,  and  how  the  lien  is  created, 284 

Where  the  lien  attaches, 285 

The  meaning  of  the  word  "  owner"  within  the  statiUe, 285 

The  right  to  acquire  a  lien  does  not  extend  to  an  assignee,  . . .  285 
When  the  labor,  &c.,  is  furnished  on  the  credit  of  the  con- 
tractor,    286 

Lien,  how  created, 286 

The  notice  and  its  requisites, 286 

Its  entry  in  the  lien  docket, 286 

Within  what  time  to  be  filed, 287 

Statute  must  be  strictly  followed, 287 

Continuance  of  the  lien, 287 

How  it  may  be  discharged, 287 

Where  and  how  enforced, 288 

The  parties  thereto, 288 

Proceedings  in  justice's  court, 288 

Action,  how  commenced, 289 

A  bill  of  particulars,  &c.,  to  be  filed, 289 

Notice  and  bill  may  be  personally  served  anywhere  within  the 

state, 289 

Or  by  leaving  a  copy,  &c.,  when  owner  cannot  be  found  or  is 

not  in  the  state, 289 

Proceedings  in  such  case,  &c., 289 

Proceedings  where  the  owner  does  not  appear, 289 

Proceedings  where  he  does  appear, 290 

Action,  how  commenced  in  supreme  court, , 290 

When  to  be  brought  there, 290 

Notice,  how  to  be  served, 290 

New  party,  how  brought  in, 291 

Proceedings  in  case  of  default, 291 

Requisites  where  service  is  by  publication, 291 

The  appearance  of  the  defendant, 291 

The  issue,  how  formed, , 292 

Proceedings  after  issue, 292 

Judgment, 293 

Execution, 294 


XXvi  CONTENTS. 

Page. 

Costs  and  disbursements, 294 

Appeal, 294 


CHAPTER  XX. 

PROCEEDINGS    IN    CASES     OF    IDIOTS,     LUNATICS    AND    HABITUAI. 
DRUNKAUDS. 

Who  liave  jurisdiction  in  such  cases, 295 

Who  are  the  persons  contemplated  by  the  statute, 296 

Who  is  an  idiot, 296 

Who  is  hmatic, 296 

Who  a  person  of  unsound  mind, 296 

What  mind  held  to  be  sound  by  the  law, 296 

Finding  of  a  jury  not  necessary  to  determine  the  fact, 297 

Habitual  drunkard,  who  is, 297 

Application  for  a  committee, 298 

How  made  and  by  whom, 298 

Where  to  be  made, 299 

The  proceedings  thereon, 299 

The  making  and  entry  of  the  order, 299 

Persons  not  to  deal  with  the  party  after  the  issuing  of  the 

commission, 299 

The  return  of  the  commission  is  a  judicial  detennination,  ....  299 

Execution  of  the  commission, 299 

The  proceedings  for  that  purpose, 300 

Precept  to  the  sheriff, 300 

The  manner  of  executing  the  same, 300 

Notice  thereof, 300 

Duty  and  power  of  the  commissioners, 301 

The  inquisition, 301 

The  findmg  must  be  in  the  language  of  the  statute, 301 

The  usual  practice  in  respect  thereto, 301,  302 

Petition  for  the  appointment  of  the  committee, 302 

Notice,  to  whom  given, , 302 

Selection  of  the  committee, 302 

What  considerations  to  govern  therein, 302 

Wishes  of  lunatic  to  be  consulted, 302 

Care  of  married  persons,  how  given, 302 

Reference  may  be  ordered  on  appointing  the  committee, 302 

When  the  appointment  is  contested, 303 

Order  of  reference,  how  executed, 303 

Practice  thereunder, 303 


CONTENTS.  XXVU 

Page. 
One  committee  for  the  person  and  another  for  the  estate  may 

be  appointed, 303 

Of  the  effect  of  the  finding  of  an  inquisition, 304 

Of  the  allowance  for  support, 305 

What  principles  govern  therein, 305 

Of  actions  by  and  against  lunatics,  &c., 306 

After  the  appointment  of  a  committee, 307 

Of  traversing  the  inquisitions, 308 

Who  may  apply  for  leave, 308 

Notice  of  the  application, 308 

The  order  allowing  the  same, 309 

Costs  of  such  traverse, 309 

Bond  by  the  committee  and  sureties, 309 

To  whom  made,  and  the  condition  thereof, 309 

Power,  duties,  liability,  compensation,  &c.,  of  the  committee,  310 

The  estate  of  the  committee, 311 

What  determines  the  authority  of  the  committee, 311 

Committee  to  make  and  file  an  inventory, 311 

The  same  to  be  repeated  annually, 311 

Compensation  of  the  committee, 312 

Proceedings  to  lease,  mortgage  or  sell, 312 

Proceedings  under  the  Revised  Statutes, 313 

The  application,  how  made, 314 

The  matter  will  be  referred, 314 

Duty  of  the  referee, 314 

Proceedings  under  such  reference, 315 

Proceedings  under  the  act  of  1864, 315 

Removal  of  the  committee, 316 

For  what  causes, 316 

The  application  for  removal, 316 

Setting  aside  the  inquisition, 317 

The  application,  how  made, 317 

Suspending  the  inquisition, 317 

Power  of  the  court, 317 

Discharging  the  commission, 317 

For  what  causes, 318 

The  matters  of  evidence,  &c., 318 


CHAPTER  XXI. 

SPECIAL  PKOCEEDIJfGS  BY  AND  AGAINST  INFANTS. 

The  appointment  of  guardians, 319 

By  whom  made, 319 


XXviii  CONTENTS. 

Page 

The  power  of  the  court  in  respect  thereto, 319 

The  mode  of  appointing  a  guardian, 319 

To  whom  this  guardianship  belongs, 320 

Proceedings  to  appoint  a  general  guardian, 320 

The  petition,  and  where  presented, 320 

The  proceeding  of  the  court  thereon, 320 

Their  method  of  determining  facts,  &c., 321 

Referee  may  be  appointed, 321 

His  duty  and  his  report, 321 

Not  required  to  give  notice,  &c., 321 

"When  his  report  will  be  confirmed, 321 

When  the  appointment  of  general  guardian  becomes  complete,  321 

The  security  to  be  given,  what, 321 

Powers  and  duties  of  the  general  guardian, 322 

What  acts  binding  on  their  wards, 322 

What  void  and  what  voidable, 322,  323 

Must  keep  his  own  funds  separate, 323 

Must  invest  within  a  reasonable  time, 323 

Must  make  suitable  provision,  &c., 323 

Must  not  draw  from  the  principal,  &c., 323 

Must  make  inventory  of  personal  estate, 324 

May  be  called  to  account  at  any  time, 324 

Proceedings  for  sale,  mortgage  or  lease,  &c.,  of  infants'  real 

estate, 324 

Jurisdiction  in  such  cases, 324 

Proceeding  is  by  petition, 324 

Appointment  of  special  guardians  for  such  proceedings, 325 

The  petition  aud  its  requisites, 325 

Who  should  join, 325 

The  appointment,  &c., 325 

The  rule  of  the  court  thereon, 326 

Provisions  of  the  statute  respecting  same, 326 

Bond  and  sureties  in  such  cases, , 327 

Reference  under  the  rule  of  court, 327 

Guardian  to  produce  certificate  of  clerk,  &c.,  before  referee  to 

proceed, 327 

Substance  of  such  certificate, 327 

Proceedings  by  the  referee, 327 

His  report, 327 

Guardians'  contracts  of  sale  to  be  in  writing, 327 

Cannot  execute  same  until  he  has  made  his  report,  and  it  is 

approved,  &c., 328 

His  report,  how  made, 328 


CONTENTS.  XXIX 

Page. 

The  order  of  the  court  thereon, 328 

Dower  in  such  cases, 328 

Final  report  of  guardian, • 328 

Proceedings  to  obtain  specific  performance,  by  infant  heir,  of 

the  contract  of  ancestor, 329 

By  petition  only, 329 

What  court  has  -^'urisdiction, ' 330 

When  a  specific  performance  will  be  compelled,- 330 

The  principle  governing  in  such  case, 330 

Court  will  exercise  a  judicial  discretion  in  such  cases, 330 

By  whom  petition  to  be  filed, 331 

What  the  petition  should  set  forth, 331 

The  presentation  and  hearing  of  the  same, 332 

Where  the  petition  is  to  be  presented, 332 

Proceedings  to  compel  an  infant  trustee  or  mortgagee  to  convey,  332 

Proceeding  by  petition, 333 

By  whom  filed, 333 

What  the  petition  must  state, 333 

When  a  guardian  ad  litem  must  be  appointed, . . . .  • 333 


CHAPTER  XXn. 

PEOCEEDINGS  TO  COLLECT  DEMANDS  AGAINST  SHIPS  AND  VESSELS. 

The  provisions  of  the  statute  in  such  cases, 334 

The  constitution  of  the  lien  thereon, 324 

When  and  how  such  lien  may  be  constituted, 334,  335 

The  expiration  of  such  lien, 335 

To  what  the  term  "  ship  and  vessel "  applies, 335 

The  specification  to  be  filed, 336 

Whei'e  the  same  must  be  filed, 336 

Warrant  against  ship,  &c.,  may  be  issued, 336 

When,  whex'e,  and  how  apjilied  for, 336 

Application  must  be  in  writing, 337 

Other  requisites  thereof, '. 337 

The  warrant  of  attachment, 338 

Pre-requisites  to  issuing  the  same, 338 

The  execution  of  such  warrant, 339 

How  it  may  be  discharged, 339 

Bond  to  be  given  and  its  nature, 340 

The  penalty  and  condition  thereof, 340 

Proceedings  where  no  bond  is  given, 340 

Sale  of  such  vessel, 341 


XXX  CONTENTS. 

Page. 

Notice  of  distribution  of  proceeds, 341 

How  other  claims  are  to  be  established, 341 

How  such  claims  are  to  be  contested, 342 

The  issue,  how  formed  and  tried, 342,  343 

Who  may  ti"y  it, 343 

Trial  before  the  judge, 344 

Distribution  of  the  proceeds, 344 

Claims,  how  exhibited  and  paid  on  their  order, 344 

Action  on  the  bond  given  to  discharge  the  warrant, 345 

Preliminaries  to  commencing  such  action, 345 

Questions  to  be  tried  in  such  action, 346 

Judgment  in  such  action, 346 

Costs  in  such  proceedings, 346 

Such  lien  may  be  assigned, 347 

Proceedings  to  obtain  a  discharge  of  such  lien, 347 

Power  of  the  officer  in  these  proceedings, 348 

Appeal  in  these  proceedings, 348 

CHAPTER  XXin. 

PEOCEEDINGS  TO   DISCOVER  THE   DEATH    OF  PERSONS,   UPON  "WHOSE 
LIVES  ANY  PARTICULAR  ESTATE  MAY  DEPEND. 

Who  may  institute  such  proceedings, 349 

How  often  they  may  be  instituted, 349 

The  petition  in  such  case, 349 

What  it  must  set  forth, 349 

The  order  of  the  court  thereon, 350 

Reference  ordered, 350 

Examination  of  witnesses, , 350 

When  habeas  corpus  may  issue, 350 

How  executed  and  returned, 350 

Return  of  referee, 351 

Proceedings  where  the  person  to  be  produced  resides  beyond 

the  jurisdiction  of  the  court, 351 

Appointment  of  commission  abroad, 352 

Notice  to  be  served, 352 

The  return  and  the  effect  thereof, . . , 352 

Other  proof  that  such  person  is  living, 352 

Evidence  in  such  cases, 352 

Costs, 352 

Restoration  of  the  estate, 353 


CONTENTS.  XXXI 

CHAPTER  XXIV. 

PARTITION. 

Page. 

In  wbat  case  partition  may  be  had, 353 

Proceedings  are  to  be  by  action, 353 

Proceedings  by  petition  not  advisable, 353 

What  coiu'ts  have  jurisdiction, 354 

Plaintiff  in  partition  to  be  of  full  age, 354 

What  must  be  the  plaintiff's  title, , 354 

In  respect  to  what  estate, 354,  355 

Possession  may  be  actual  or  constructive, . .  , 355 

Commencement  of  the  action, 355 

Parties  thereto, 355 

In  case  of  an  infant,  what  proceedings, 355,  356 

The  petition  of  the  infant  applicant, 356 

The  proceedings  thereon, 356 

Where  parties  interested  are  imknown, 357 

Where  lands  are  held  by  the  state  and  an  individual  as  tenants 

in  common, 357 

Idiots,  &c.,  to  be  made  parties, 357 

Judgment  creditors  and  mortgagees,  358 

The  action,  how  commenced, 358 

The  pleadings  therein, 358 

Appointment  of  guardian  ad  litem  for  infant  defendants, 358 

Where  the  infant  resides  out  of  the  state, 359 

Within  what  time  to  apply  for  appointment  of  guardian  ad 

litem^ 359 

Plaintiff  must  wait  after  serving  summons, 359 

Notice  to  be  given  where  the  infant  is  under  fourteen, 360 

The  length  of  such  notice, 360 

The  appointment  of  special  guardian,  how  made, 361 

What  the  petition  should  specify, 361 

The  order  appointing  such  guardian, 361 

What  it  must  specify, 361 

The  act  of  1852  in  this  respect, 362 

Its  application, 362 

The  answer  and  other  pleadings, 363 

Any  party  appearing  may  plead  separately, 363 

Default  of  defendant, 364 

When  a  part  answer  only,  how, 364 

Where  none  appear, 364 

What  necessary  to  entitle  plaintiff  to  judgment, 364 


XXxii  CONTENTS. 

Rofercnce  when  ordered, 365 

What  it  directs, 365 

When  premises  cannot  be  divided, 365 

What  must  be  found  and  returned, 365,  366 

Proceedings  upon  reference,  how  governed, 366 

Report  of  referee,  what  to  contain, 366,  367 

The  hearing  thereupon, 367 

Judgment  or  order  for  partition, 367 

Appointment  of  commissioners  to  execute,  &c., 369 

Their  powers  and  duties, 369 

Pre-requisites  to  the  execution  of  their  office, 370 

Proceedings  in  the  discharge  of  their  duties, 370 

Must  notify  all  parties  interested, 370 

Where  there  is  an  estate  in  dower,  or  by  the  courtesy, 371 

Limit  of  the  powers  of  the  commissioners, 371 

They  are  to  execute  the  judgment  of  the  court  upon  the  pre- 
mises,     , 371 

They  have  authority  to  examine  witnesses, 372 

How  they  must  perform  their  duties, 372 

What  their  report  must  show, 372 

Effect  of  setting  aside  their  repoit, 373 

Final  judgment  upon  actual  partition, 373 

Who  bound  thereby, 373 

Effect  of  the  act  of  1847,   374 

What  this  judgment  should  specify, 374 

Report  that  the  land  cannot  be  partitioned, 375 

When  such  report  to  be  made, 375 

Order  of  the  court  thereon, 375 

Proceedings  in  respect  thereto, 375,  376 

Further  parties  may  then  be  made, 376 

Further  reference  to  be  had, 376 

Notice  to  be  published, 376 

Order  of  sale  and  proceedings, 377 

Where  there  are  incumbrances  upon  the  estate  affecting  any  of 

the  parties, 377 

Proceedings  in  respect  to  the  same, 377 

The  application  to  the  court, 377 

What  must  accompany  it, 377 

What  notice  to  be  given, 377 

Hearing  of  the  application, 377 

Order  thereupon, 377 

Canceling  of  such  incumbrance, 377 


COXTENTS.  XXXlll 

:  Page. 

Order  of  sale  by  the  commissioners, 378 

What  it  should  embrace, 378 

Proceedings  of  the  commissioners  under  such  order, 378 

Notice  of  sale  to  be  given, 378 

Sale,  how  conducted, 378 

Report  of  sale, 379 

Conveyance  of  the  premises, 379 

Effect  of  such  conveyance, 379 

Costs  to  be  deducted, 379 

Disposition  of  the  proceeds, 380 

Where  any  of  the  known  parties  are  infants, 380 

When  absent  or  unknown, 380 

Where  proceeds  belong  to  tenant  in  dower,  &c., 380 

Investment  to  be  made, 380 

In  what  securities, 380 

In  whose  name  security  to  be  taken, 380 

When  conveyances  to  be  executed, 380 

Proceedings  for  a  sale  by  a  referee, 381 

Referee  takes  the  place  of  the  master, 381 

Proceedings  under  the  79th  rule, 381 

An  additional  order  to  be  made, , . . . .  382 

Question  for  the  consideration  of  the  referee, 382 

Duty  of  the  referee, 382 

When  a  reference  might  be  unnecessary, 383 

Proceedings  under  the  reference,  how  conducted, 384 

What  should  be  furnished  to  the  referee, 384 

Report  of  the  referee, 385 

On  the  death  of  a  party  new  parties  to  be  brought  in, 385 

Judgment  for  sale  and  distribution, 385 

Sale  by  the  referee, 386 

Notice  to  be  given  and  what, 386 

The  manner  of  the  sale, 386 

Terms  thereof  to  be  made  known, 386,  387 

Report  of  such  sale, 387 

Confirmation  of  such  sale, 388 

Executing  conveyances, 388 

Purchaser  declining  to  take  the  title, 388 

Motion  to  compel  the  purchaser, 388 

Rights  of  the  purchaser, 389 

Resale  may  be  directed, 389 

Appeal  in  these  cases, 389 


XXXIV  CONTENTS. 

CHAPTER  XXV. 

VOLUNTARY  ASSIGNMENTS. 

Page. 

Requisites  to  the  validity  of  the  same, 390 

The  accompanying  schedule, 391 

Requisites  in  respect  to  the  assignee, 391 

Acceptance  by  the  assignee, 391 

What  A'csts  in  him  by  the  assignment, 392 

He  takes  subject  to  equities, 392 

Rights  of  the  assignor, 393 

Preferred  creditoi'S, 393 

Debtor  in  failing  circumstances, 393 

In  limited  partnerships,  assignments  giving  preferences  not  per- 
mitted,    394 

Same  in  respect  to  insolvent  corporations, 394 

Assignments,  when  void  upon  their  face, 395 

What  assignments  are  void, 395 

Construction  thereof, 396 

What  will  vitiate  an  assignment, 396 

Authorizing  a  sale  on  credit, 396 

The  principle  involved, 396 

Made  with  an  intent  to  hinder  and  delay  creditors,  &c., 397 

But  power  to  comj^romise  does  not  vitiate, 397 

Provisions  in  favor  of  the  assignee, 397 

When  a  discretionary  power  will  vitiate, 397 

So  a  clause  therein  exempting  the  assignee  from  liability  for 

neglect,  &c.,   397 

When  void  upon  extrinsic  evidence, 397 

What  must  be  the  intent, 398 

Fraud  may  be  inferred, 398 

A  valid  assignment  cannot  be  changed, 398 

The  assignee,  his  rights  and  duties, 398 

Bond  of  the  assignee, 398 

Suit  on  the  same,  when  to  be  instituted, 399 

Duty  of  the  assignee, , 399 

Compensation, 400 

CHAPTER  XXVI. 

COSTS. 

The  failing  party  to  pay  is  the  rule, 400 

The  right  to  costs  is  statutory, 401 


CONTENTS.  XXXV 

Page. 

In  equity  costs  were  in  the  discretion  of  the  court, 401 

Effect  of  the  enactment  of  the  Code  thereon, 401 

What  parties  are  ordinarily  liable  thereto, 402 

Suits  which  are  exceptions, 402 

Suits  by  poor  persons,   402 

Provisions  in  respect  thereto, 402 

Trustees  of  an  express  trust, 404 

What  must  be  shown,   404 

Receiver  suing  a  claim  transferred, 404 

General  assignee  for  benefit  of  creditors, 404 

An  executor  and  administrator, 404 

Power  to  grant  costs  in  these  cases  is  in  the  discretion  of  the 

court, 405 

Against  executors,  &c.,  . 405 

When  costs  may  be  given, 405,  406,  407 

What  must  be  made  to  appear, 407 

Municipal  corjjorations, 408 

Security  for  costs,  when  required, 408 

As  to  foreign  corporations, 409 

The  power  of  the  court  in  respect  thereto, 409 

When  application  foi',  to  be  made, 409 

Right  to  require  security  may  be  waived, 409 

How  it  may  be  waived, 409,  410 

The  application  therefor, 410 

The  aflidavit  showing  applicant's  right,  &c., 410 

Proceedings  stayed  until  security  is  given, 410 

Security  not  filed,  motion  to  dismiss, 410 

Effect  of  an  order  to  show  cause, 410 

Security  in  the  form  of  a  bond, 410 

Excepting  to, 411 

Justification  of  sureties,  . , 41 1 

Hearing  of  the  motion, 411 

When  attorney  liable, 412 

Staying  proceedings  until  former  costs  are  paid, 412 

When  the  stay  will  be  granted, 412,  413 

When  it  will  not  be  granted, 414 

The  motion  for  such  stay, „ 414 

When  a  party  not  of  record  liable, 414 

What  to  be  established  under  the  statute, 415 

When  a  defendant  is  not  liable, 416 

Parties  of  record  liable  for  costs  though  they  have  assigned,. .  417 

Liability,  how  ascertained, 417 

How  enforced, 417 


XXXvi  CONTENTS. 

Page. 

Liability  of  guardian  ad  litem, 417 

Liability  of  a  relator, 418 

In  actions  by  the  people, 418 

Costs,  when  allowed,  of  course, 419 

In  actions  as  to  real  property, 419 

As  to  personal  property, 420 

In  actions  for  the  recovery  of  money, 421 

Several  plaintiifs  recover  but  one  bill, 422 

When  and  how  defendants  are  liable, 422 

Eftect  of  an  offer  or  tendei-,  &c., 422 

When  allowed  to  defendant, , 424 

When  there  are  several  defendants, 424 

When  both  parties  are  allowed  costs, 424 

Costs  in  the  discretion  of  the  court, 425 

Rule  applicable,  &c., 425 

Where  the  party  is  found  in  the  wrong, 425 

Where  the  suit  was  unnecessary, 425 

Rates  of  costs, 425,  426 

For  plaintiff, 425 

For  defendant, 426 

Additional  allowances  of  costs, 428 

Allowance  in  difficult  and  extraordinary  cases, 428 

Allowance,  how  computed, 429 

Effect  of  new  trial  on  allowance, 430 

Increased  costs  under  Revised  Statutes, 430,  431 

Costs  on  appeal  to  general  term, 433 

Special  verdict  and  exceptions, 433 

Costs  in  court  of  appeals, 433 

Transferred  appeals, 434 

Taxation  of  costs, 434 

Disbursements, 434 

Fees  of  referee, 435 

Clerks'  fees, 435 

Sheriffs'  fees, 436 

Jurors'  fees, 437 

Searches  and  copies, 437 

Witness  fees, 437 

Affidavits  of  attendance  and  of  disbursements, 438 

Foreign  witnesses, , 439 

Party  as  a  witness, 439 

Expenses  in  executing  a  commission, , 439 

Surveyors'  fees, 439 

Notice  of  taxation, 439 


CONTENTS.  XXXVU 

Page. 

Effect  of  omitting  notice, 440 

Power  and  duty  of  the  clerk,  &c., 440 

Opposing  taxation, 440 

What  statutes  govern  the  taxation, 441 

Retaxation, 441 

Interlocutory  costs, 442 

How  taxed, 442 

How  collected, 442 

Costs  on  postponement  of  trial, 443 

Motions, 443 

Costs  of  review  in  special  proceedings,  and  surrogate's  court,  443 

Costs  on  settlement, 444 


A 

TREATISE 


ADMINISTEATION  OF  CIVIL  JUSTICE. 


CHAPTER  L 

JUD&MEXTS  IN  SPECIAIi  CASES. 

M>r  and  agai7Xst  one  or  more  of  several  parties. 

Judgment  may  be  given  for  or  against  one  or  more  of 
several  plaintiifs,  and  for  or  against  one  or  more  of  several 
defendants,  and  it  may  determine  the  ultimate  rights  of 
the  parties  on  each  side  as  between  themselves.^  The  Code 
has  introduced  the  chancery  rule  in  place  of  that  of  the 
common  law,  which  was  that  on  an  alleged  joint  contract 
the  plaintiff  must  recover  against  all  the  defendants  or 
none.  Hence,  in  actions  of  a  legal  nature,  as  well  as  those 
of  an  equitable  character,  a  several  judgment  may  be 
rendered  against  the  one  found  liable,  although  others  are 
united  with  him  as  defendants  in  the  action.^ 

So  where  two  defendants  are  sued  jointly  on  a  contract, 
which  on  its  face  is  the  joint  contract  of  both,  but  which 
in  fact  and  legal  effect  is  the  contract  of  only  one  of  the 
defendants,  judgment  may  be  rendered  against  the  party 
liable  and  in  favor  of  the  other.^  Thus  where  the  action 
was  brought  against  two  defendants  as  partners,  and  it 


'  Code,  §  274,  subd.  1.  »  Claffin  v.  BaUerly,  2  Abb.,  446 ;  S.  C, 

5  Duer,  327. 


2  ADMINISTEATION  OF  CIVII;  JUSTICE. 

appeared  that  only  one  had  made  himself  liable,  as  he  had 
acted  without  authority  from  his  partner,  it  was  held  that 
the  plaintifl"  was  entitled  to  judgment  against  the  one  who 
was  liable.'  The  principle  is,  the  plaintiff  may  have  judg- 
ment against  one  or  more  of  several  defendants  whenever 
ni)on  the  facts  of  the  case  a  cause  of  action  is  made  to 
appeap  against  such  defendant.^ 

Upon  the  same  principle,  where  an  action  is  brought 
against  two  or  more  defendants  upon  a  contract  made  by 
or  in  behalf  of  an  association  or  a  firm,  if  one  of  the 
defendants  sued  makes  default  and  others  appear  and 
answer,  the  plaintiff  may  prove  on  the  trial  that  the  con- 
tract was  made  by  the  firm  or  association,  and  that  the 
defendants  appearing  are  members  thereof;  but  it  will  not 
be  necessary  for  him  to  prove  that  the  defaulting  defendant 
is  also  a  member.^  This  principle  will  also  apply  when  it 
appears  that  one  of  the  parties  sued  was  never  liable. 
Thus,  in  an  action  on  a  bond,  joint  and  several  in  its 
character,  purporting  to  have  been  issued  by  the  defend- 
ants, when  in  fact  only  one  of  them  signed  it,  the  ])laintiff 
may  have  his  judgment  against  the  one  executing  the 
bond." 

Where  the  plaintiff  sues  some  only  of  the  defendants 
liable  on  a  joint  and  several  contract,  and  the  defect  of 
parties  does  not  appear  on  the  face  of  the  complaint,  the 
defendants,  if  desirous  of  taking  advantage  of  the  non- 
joinder, should  plead  it;  but  omitting  to  do  so,  the  plain- 
tiff may  recover  against  the  parties  sued,  although  it 
appear  on  the  trial  that  others  also  were  jointly  liable  with 
those  sued.^  Xon-joinder  of  party  defendants  must  be 
taken  advantage  of  by  demurrer*'  or  by  answer.'^ 

In  actions  for  torts  each  defendant  is  jointly  and  severally 
liable;  and  the  plaintiff  has  his  election  to  proceed  against 
them  all  jointly,  or  against  any  number  of  them,  and 
their  non-joinder  cannot  be  taken  advantage  of,  either  by 
demurrer,  answer,  or  upon  the  trial.     The  rule,  in  this 


'  Claffin  V.  Batterly,  2  Abb.,  446;  S.  C,  5  Duer,  327  ;  see  also  Parker  v.  Jackson, 
16  Barb.,  3?,;  and  Brumskill  v.  James,  11  N.  Y.,  294;  see  opinion  of  Gardner,  J., 
in  same. 

"^  Harrington  v.  Higham,  15  Barb.,  525;  Bonsteel  v.  Vande7-Mlt,  21  Barb.,  26; 
Marquat  v.  Marquat,  12  N.  Y.,  342;  Feojile  v.  Cram,  8  How.,  151;  Witherhead 
V.  Allen,  28  Barb.,  661. 

'  Downing  v.  Mann,  9  How.,  204 ;  4  E.     '  Fowler  v.  Kennedy,  2  Abb.,  347. 
D.  Smith.  36.  »  Code.  §  144. 

*  People  V,  Cram,  8  How.,  151,  ''  Code!  §  147. 


JUDGMENTS  IN  SPECIAL  CASES.  3 

respect,  remains  the  same  as  before  the  Code.^  Where  on 
trial  the  plaintiff  produces  no  evidence  against  any  of  the 
defendants,  such  defendants  will  be  entitled  to  judgment; 
so  also  where  nothing  appears  in  the  pleadings  or  evidence 
to  charge  a  portion  of  the  defendants,  they  may  be  dis- 
charged.^ 

Wliere  the  lidbility  is  only  joint  there  can  be  only  a  joint 
recovery  and  judgment;  and  no  judgment  can  be  entered 
by  the  plaintiff  until  all  the  defendants  served  have  had 
their  full  time  to  answer.^  And  when  a  number  of  de- 
fendants are  sued  upon  a  joint  liability,  and  some  of  them 
defend,  while  one  fails  to  answer,  the  defense  put  in  pre- 
vents the  plaintiff"  from  taking  any  judgment  against  either 
of  the  defendants  until  the  issue  raised  has  been  disposed 
of.* 

In  an  action  for  lands  bought  by  husband  and  wife, 
where  the  husband  is  entitled  to  the  whole  rents  and 
profits  of  the  property  if  recovered  during  their  joint  lives, 
if  there  are  no  children,  and  dimng  his  life,  if  there  are 
children,  a  separate  judgment  in  favor  of  the  wife  and 
against  the  husband  cannot  be  given.  They  must  recover 
jointly  or  not  at  all.^ 

Where  a  judgment  has  been  reversed  and  the  complaint 
is  necessarily  dismissed  as  to  some  of  the  defendants,  it 
will  not  be  dismissed  as  to  all  of  them,  provided  it  appear 
from  the  facts  stated  and  established  on  the  trial  that  the 
plaintiff  is  entitled  to  some  relief  against  a  part  of  the 
defendants ;  and  the  court  will  retain  the  action  against 
such  defendants,  that  the  plaintiff  may  have  such  relief 
against  them  as  he  may  prove  himself  entitled  to.^ 

By  abolishing  the  formal  distinctions  between  actions 
at  law  and  suits  in  equity,  and  between  judgments  and 
decrees,  the  Code  properly  jDrovides  for  the  determination 
of  the  ultimate  rights  of  the  parties  on  each  side,  as 
between  themselves :  that  is,  the  Code  gives  to  the  court 
or  judge,  in  making  up  the  judgment,  the  power  of  the 


'  Montford  v.  Hvxjhs,  3  E.  D.  Smith,  591 ;  Wagner  v.  Bill,  19  Barb.,  321 ;  Wood- 
burn  V.  Chamberlain,  17  Barb.,  446;  Parker  v.  Jackson,  16  Barb.,  33. 

*  Woodbum  V.  Chamberlain,  17  Barb.,  446. 

'  Jivjjues  V.  Greenwood,  1  Abb.,  230 ;  Mechanics'  &  Farmers^  Bank  v.  Rider,  5 
How.,  401 ;  see  particularly  the  dis.senting  opinion  of  Justice  Parker. 

*  Catlin  V.  LaUon,  4  Abb.,  248;  Catlin  v.  Billings,  13  How.,  511;  Bacon  v.  Corn- 
stock,  11  How.,  197;  Sluyter  v.  Smith,  2  Bosw.,  673:  LaFarge  v.  Chilson,  3  Sandf., 
752. 

*  Bartow  v.  Draper;  5  Duer,  130.  *  Williams  v.  Christie,  4  Duer,  29. 


4  ADMINISTRATION-  OF  CIVIL  JUSTICE. 

chancellor,  to  settle  the  rights  and  equities  of  the  jjarties 
necessarily  involved  in  such  adjudications ;  and  gives  to 
the  indgnient,  in  its  substance  and  scope,  when  necessary, 
the  character  of  a  decree.^ 

It  provides  further,  that  the  court,  in  giving  judgment, 
may  grant  to  the  defendant  any  affirmative  relief  to  which 
he  may  be  entitled.^  The  affirmative  relief  which  the  court 
is  authorized  thus  to  grant  to  the  defendant,  is  affirmative 
relief  against  the  plaintiff  only,  not  against  a  co-defend- 
ant.^ And  when  the  defendant  would  be  entitled  to 
affirmative  relief  against  the  plaintiff,  he  must  put  him- 
self in  the  position  of  an  actor,  in  bringing  the  cause  to 
trial,  if  he  would  demand  it.^  After  issue  joined,  if  he 
seeks  judgment  for  more  than  a  dismissal  of  the  com- 
plaint, hemust  notice  the  cause  for  trial  .^ 

He  may  obtain  such  affirmative  relief  as  he  is  entitled 
to,  if  the  cause  comes  on  to  a  trial  either  upon  his  own  or 
the  plaintifi\s  notice.*^ 

The  Code  further  provides  that  in  actions  against  several 
defendants,  the  court  man,  ^'*'  ^^■'»'  (discretion,  render  judgment 
against  one  or  more  of  tliem,  leaving  the  action  to  irroceed 
against  the  others,  whenever  a  several  judgment  may  he  pro- 
per.'' From  this,  it  will  be  perceived,  that  there  may  be 
cases  where  a  several  judgment  against  defendants  would 
not  be  proper  ;  as  on  a  joint  contract,  where,  by  the  terms 
thereof,  it  is  only  joint."  This  provision  of  the  Code  can 
only  apply  in  cases  where  the  defendants  are  severally 
liable. 

And  further,  this  authority  for  severing  the  defendants 
in  pronouncing  judgment,  is  to  be  exercised  onlj^  in  the 
discretion  of  the  court ;  therefore,  it  would  be  irregular 
for  a  plaintiff,  without  an  order  of  the  court  for  that  pur- 
pose, to  enter  judgment  against  one  defendant,  and  con- 
tinue the  action  as  to  others  of  them.^  The  principle  is 
this,  the  plaintiff  is  not  authorized  to  sever  defendants 
who  are  jointly  before  the  court,  without  the  order  of  the 
court.    Therefore,  where  a  number  of  defendants  are  sued 


'  Code,  §  274,  subd.  1,  last  clause.  *  Roy  v.  Thompson,  8  How.,  253. 

'  Code,  §  274,  subd.  2.  '  Wilson  v.  Wheeler,  6  How.,  49;  Pot- 

'  Mechanics'  Savinr/  Inst.  v.  Rohberts.  1  ter  v.  Davidson,  8  Abb.,  43. 

Abb.,  381 ;   Tracy  v.  Sleam  Faucet    *  Roy  v.  Thompson,  8  How.,  253. 
Co.,  1  E.  D.  S.,  349.  '  Code.  §  274,  subd.  3. 

*  See  Mechanics^  &  Farmers'  Bank  v.  Rider.  5  How.,  401;  and  particularly  the 
dissenting  opinion  of  Justice  Parkkr  ;  Jacques  v.  Greenwood,  1  Abb.,  230. 
'  Bacon  v.  Coynstock,  11  How..  197. 


JUDGMENTS   IX   SPECIAL   CASES.  5 

on  a  joint  liability,  and  some  defend,  and  one  fails  to 
answer,  the  plaintiff  is  not  entitled  to  judgment  against 
the  defendant  not  answering  until  the  issues  raised  by  the 
other  defendants  are  disposed  of.^ 

The  Code  nowhere  authorizes  a  several  judgment 
against  a  defendant  only  jointly  indebted.  It  provides^ 
that  where  the  action  is  against  two  or  more  defendants, 
and  the  summons  is  served  on  one  or  more,  but  not  on 
all  of  them,  the  plaintiff  may  proceed,  if  the  action  be 
against  defendants  jointly  indebted  upon  contract,  against 
the  defendants  served,  unless  the  com-t  otherwise  direct ; 
and  if  he  recover  judgment,  it  may  be  entered  against  all 
the  defendants  thus  jointly  indebted,  so  far  only  as  that  it 
may  be  enforced  against  the  joint  property  of  all,  and  the 
separate  property  of  the  defendants  served ;  and,  if  they 
are  subject  to  arrest,  against  the  persons  of  the  defend- 
ants served.^ 

Substantially  the  same  provisions  are  made  by  the 
Eevised  Statutes.  Similar  i)owers  are  given  to  proceed 
against  the  joint  defendants  served  with  process  the  same 
as  though  all  had  been  served.^  And  by  the  second  section 
of  the  act  it  is  provided,  that  such  judgment  shall  be 
conclusive  evidence  of  the  liability  of  the  defendants 
served  with  process  in  the  suit,  or  who  appeared  therein ; 
but  as  against  all  other  defendants,  it  shall  be  evidence 
only  of  the  extent  of  the  plaintiff's  demand,  after  the  lia- 
bility of  such  defendant  shall  have  been  established  by 
other  evidence.* 

The  provisions  of  the  Eevised  Statutes  are  not  repealed 
by  the  Code,  and  may  be  followed  as  before.^  Therefore, 
in  all  such  cases,  whether  under  the  statute  or  the  Code, 
the  judgment  should  be  entered  against  all  the  defend- 
ants, whether  they  have  been  served  with  process  or  not.^ 
This  principle,  however,  does  not  apply  to  the  heirs  of  a 
person  dying  intestate,  when  they  are  sued  for  the  debts 
of  the  intestate.  Although  the  statute"  requires  them  to 
be  sued  jointly  and  not  sej^arately,  their  interests  are 
several,  and  each  is  severally  liable  for  his  proportion.^ 


'  Cailin  V.  Latson,  4  Abb.,  248.  *  2  R.  S.,  377,  §  2. 

*  Code,  §  136.  »  Sterne  v.  Beritky,  3  How.,  331;  1  C. 

'  2  R.  S.,  377,  §  1.  R.,  109. 

'  Merrifield  v.  Cooky,  4  How.,  279;  see  also  5  How.,  401 ;  Stannard  v.  Mattice, 
7  How.,  4;    Crandall  v.  Beach,  7  id.,  271;  Bridge  v.  Peysnn,  5  Sand.,  210. 
'  L  1837,  537,  §  73.  "  Kellogg  v.  Olmsted,  6  How.,  487. 


AD:\rrN"ISTRATION  OF   CmJj  JUSTICE. 


Judgtnents  against  Executors. 

In  proceedings  against  executors  and  administrators  as 
such,  to  recover  against  the  estate  which  they  represent, 
the  entry  of  judgment  should  be  special.  The  statement 
that  the  judgment  is  against  them  as  executors  is  not 
sufficient.  It  should  be  against  them  as  executors,  &c., 
of  the  last  will  and  testament  of  A.  B.,  deceased,  «S:c.,  to 
be  levied,  in  a  due  course  of  administration,  out  of  the 
goods  and  chattels  which  were  of  the  said  A.  B.,  deceased, 
at  the  time  of  his  death,  and  which  have  come  to  the 
hands  of  the  said  E.  F.  and  G.  H.,  executors,  as  aforesaid, 
to  be  administered,  &c.^ 

At  common  law  a  judgment  against  an  executor  was 
never  general,  as  against  one  x^ersonally  liable ;  it  was 
always  special.  And  there  is  nothing  in  the  Eevised 
Statutes  or  in  the  Code  to  dispense  with  the  necessity  of 
these  special  forms  of  judgment ;  and  such  special  forms 
are  peculiarly  proper  where  the  proceeding  is  limited  to  a 
remedy  against  the  estate  of  the  deceased  in  the  hands  of 
his  executor.* 

In  such  case  a  general  judgment  that  the  plaintiff 
recover  of  the  defendants,  as  executors,  the  amount  so 
ordered  to  be  paid,  and  interest  and  costs,  and  that  the 
property  and  estate  of  J.  T.,  deceased,  be  applied  to  the 
payment  thereof,  and  that  the  defendants  pay  the  same 
to  the  plaintiff,  and  that  he  have  execution  therefor,  is 
erroneous.^ 

Judgment  for  equitable  relief. 

A  judgment,  under  the  Code,  being  the  final  determi- 
nation of  the  rights  of  the  parties  in  an  action,*  embraces 
what  were  known,  under  the  former  practice,  as  decrees 
in  chancery,  so  far  as  proceedings  in  chancerj^  are  in- 
cluded in  the  term,  "civil  actions."^  And  it  has  been 
suggested,  that  that  class  of  proceedings  in  equity  were 
included,  where  the  principal  bill  or  complaint  prayed  the 
decree  of  the  court  touching  some  right  claimed  by  the 
party  exhibiting  it,  in  opposition  to  some  right,  real  or 
supposed,   claimed  by  the  party  against  whom  it  was 


'  See  remarks  of  Mitchel,  J.,  in  Mills    '  Mills  v.  Thurshy,  svpra,  334,  335. 

V.  Thursl/ij,  2  Abb.,  440.  "  Code,  §  245. 

»  Idem.,  436,  437.  *  See  ante,  voL  1,  p.  109. 


JUDGMENTS  IX   SPECIAL   CASES.  7 

exliibited.  That  is,  the  term  "civil  action"  of  the  Code 
embraces  such  ijroceedings  in  equity  ouly  as  were  had  by 
origiual  bill  praying  relief  against  the  plaintift''s  adver- 
sary. Other  proceedings  in  equity  are  in  their  nature 
special  proceedings,  according  to  the  classification  of  the 
Code.^ 

Where  equitable  relief  is  sought  by  a  complaint  in  the 
nature  of  an  original  bill  praying  relief  against  the  plain- 
tiff's adversary,  the  judgment  of  the  court,  if  relief  be 
granted,  will  be  in  the  nature  of  a  decree  under  the 
former  system  of  practice,  and  its  form  and  requirement 
will  vary  according  to  the  peculiar  circumstances  of  each, 
particular  case.  Care  must  be  taken  to  see  that  the 
formal  judgment  or  decree  be  in  strict  accordance  with 
the  prayer  of  the  complaint,  except  so  far  as  the  court 
may  direct  in  disposing  of  the  equities  between  the  par- 
ties. It  should  be  full  and  explicit  on  every  point.  So 
that  there  may  be  no  uncertainty  as  to  the  rights  adjudi- 
cated and  settled,  and  as  to  the  manner  of  executing  the 
decree. 

Where  no  ansAver  is  put  in  by  the  defendant,  it  is 
deemed  a  confession  of  the  plaintiff's  rights,  as  set  up  in 
his  complaint;  and,  therefore,  the  plaintifl"  will  be  entitled 
to  such  judgment  or  decree  as  he,  in  his  complaint,  has 
shown  that  justice  demands,  and  no  other.  It  is,  there- 
fore, provided  that  the  relief  granted  to  the  plaintiff, 
where  there  is  no  answer,  cannot  exceed  that  which  he 
shall  have  demanded  in  his  complaint.^  Hence,  where 
the  complaint  asks  for  specific  relief,  and  the  defendant 
makes  no  defense,  the  plaintiff  cannot  take  judgment  for 
a  greater  amount  than  is  asked  for  in  the  complaint.^ 
Thus,  where  the  complaint  asked  that  notes,  to  the 
amount  of  85,000,  be  delivered  up  to  be  canceled,  and  that 
judgment  of  $2,000  be  given,  but  on  default,  the  plaintiff 
took  judgment  for  $7,000,  it  was  held  erroneous,  and  the 
judgment  was  reversed.*  But  in  an  action  for  a  specific 
Ijerformance,  the  court  may  give  damages  for  a  non-per- 
formance where  no  answer  is  i)ut  in.^  So,  also,  in  an 
action  to  reform  a  contract,  the  court  may  order  the  con- 


*  Code,  §  3.  *  Hwrdv.  Levenworth,  1  Codo  R.  fN.  S.l, 
«  Code,  §  275.  278. 

*  Uurd  V.  Levenworth,  1  Code  R.  [N.  S.],  *  Marquat  v.  Marqmt,  12  N.  T.,  336. 

278. 


8  ADMENISTRATION   OF   CIYIL  JUSTICE. 

tract  to  be  reformed,  and  may  also  give  damages  for  the 
breach  of  it  as  reforaied.^ 

Where  the  comphdut  asks  an  accounting,  and  a  judgment 
for  the  bahmce  ascertained  to  be  due,  instead  of  asking  for 
a  specitied  sum,  it  is  necessary,  in  case  of  failure  to  answer, 
that  an  account  should  be  taken  by  a  referee.^  So  in  an 
action  against  heirs  and  devisees  for  a  debt  of  the  testator, 
although  the  complaint  demands  only  a  personal  judgment, 
the  court  may,  in  furtherance  of  justice,  give  judgment  or 
decree  that  the  plaintiff's  debt  be  levied  of  the  lands  of  the 
testator  described  in  the  complaint.^ 

In  case  the  defendant  answers,  the  plaintiff,  in  his 
relief,  is  not  confined  to  the  particular  demand  of  his 
complaint.  Under  the  Code^  he  has  the  benefit  of  the 
general  prayer  for  other  and  further  relief.  But  the  relief 
given  must  be  consistent  with  the  facts  stated.^ 

Jiidgnient  hi  actions  for  the  recovery  of  personal  property. 

In  an  action  to  recover  the  possession  of  personal  pro- 
perty, judgment  for  the  i)laintift'  may  be  for  the  possession, 
or  for  the  recovery  of  the  possession,  or  for  the  value 
thereof,  in  case  a  delivery  cannot  be  had,  and  also  for 
damages  for  the  detention  thereof.^  K  the  plaintiff  has 
already  obtained  possession,  judgment  is  for  the  posses- 
sion of  the  property  and  for  damages  against  the  defend- 
ant for  its  detention.  If  he  has  not  obtained  possession, 
the  judgment  is  for  the  recovery  by  him  of  the  possession, 
with  damages,  «&c.,  or  that  he  recover  the  value  of  the 
property,  and  damages,  in  case  possession  cannot  be  had. 
In  the  latter  case  he  must  take  judgment  in  the  alternative 
form  prescribed,  either  for  a  return,  or  for  the  value  of  the 
property,  in  case  a  return  cannot  be  had.  He  cannot,  at 
his  election,  abandon  the  property  and  take  a  judgment 
for  its  value.''  But,  should  he  do  so,  the  defect  in  his 
judgment  may  be  amended,^  and  the  appellate  court  will 
disregard  it,  unless  excepted  to  in  the  court  below.^ 


>  Bidwell  V.  Astor  Mutual  Ins.   Co.,  16     *  Code,  §  215. 

N.  Y.,  263.  *  Emery  v.  Peo^e,  20  2^.  Y.,  62 ;  Mar- 

«  Porter  v.  Lent,  4  Duer,  671 ;  2  Abb.,  quat  v.  Marquat,  12  N.  Y.,  836. 

115.  »  Code,  §  277. 

»  Woodv.  Wood,  26  Barb.,  356;  2  E.  S.,  454. 

'  Fitzhv/fh  V.  Wi'man,  9  N.  Y.,  559;  Rockiuell  v.  Saunders,  19  Barb.,  473;  Van 
Neste  V.  Connover,  20  Barb.,  547;  Dolus  v.  Rv^h,  28  Barb.,  157;  Ingersoll  v.  Bast- 
•wick,  22  N.  Y,  425. 

*  Fitzhugh  v.  Wimans,  supra.  =  Johnson  v.  CarnUy,  ION.  Y.,  570. 


JUDGMENTS  IS  SPECIAX.   CASES.  9 

If  the  property  lias  been  taken  and  delivered  to  the 
plaintiff,  and  the  defendant  claim  a  return,  and  he  be 
entitled  to  judgment,  judgment  may  be  for  a  return  of 
the  property,  or  the  value  thereof  in  case  a  return  cannot 
be  had,  and  for  damages  for  taking  and  withholding  the 
same.^  The  defendant,  as  well  as  the  plaintiff,  must  take 
his  judgment  in  the  alternative  under  those  circumstances, 
as  he  no  longer  possesses  the  right  of  electiug  to  take 
judgment  for  the  value  only.^  For,  in  such  case,  the 
Ijlaintiff  may  elect  to  return  the  property  instead  of  pay- 
ing its  value.^ 

On  taking  judgment  the  prevailing  party  must  attend 
particularly  to  the  finding  of  the  value  of  the  property, 
and  also  to  the  proper  assessment  of  damages  for  the 
detention  thereof,  as  these  are  to  be  included  in  the  judg- 
ment. For  in  an  action  to  recover  the  possession  of  per- 
sonal property,  if  the  plaintiff'  recover  less  than  fifty 
dollars  damages  he  can  recover  no  more  costs  than  damages, 
unless  he  also  recover  proI)ert3^  the  value  of  which,  with 
the  damages,  amounts  to  fifty  dollars;  or  unless  the  pos- 
session of  the  property  be  adjudged  to  him,  the  value  of 
which,  with  the  damages,  amounts  to  fifty  dollars;  and 
such  value  must  be  determined  by  the  jury,  court  or  referee, 
by  whom  the  action  was  tried.* 

Where  the  complaint  is  dismissed  for  a  defect  in  the 
evidence,  the  defendant  will  be  entitled  to  judgment  for  a 
return  of  the  goods  without  any  evidence  of  his  own  title,^ 
and  costs  are  to  be  allowed  to  the  defendant  unless  the 
plaintiff  is  entitled  thereto. 

tTudgments  in  actions  for  the  recovery  of  real  property. 

Judgment  in  ejectment  must  be  for  the  recovery  of  the 
possession  of  the  premises,  according  to  the  verdict  of  the 
jury,  when  such  verdict  has  been  had ;  but  if  there  be  no 
verdict,  as  if  by  default,  then  it  will  be  according  to  the 
description  of  the  premises  in  the  complaint,  Avith  costs  to 
be  taxed.*^  The  plaintiff  is  also  entitled  to  recover  damages 
against  the  defendant  for  the  rents  and  profits  of  the 
premises  recovered,  excepting  when  the  action  is  brought 


•  Code,  §  277. 

^  Dwight  V.  Em.-!,  9  N.  T.,  470;    Seaman  v.  Lii/:e,   23  Barb.,   240;    Wilson  v. 
Wlieder.  6  How.,  49. 
'■>  Ilann  v.  Yoiomjlovv,  27  Barb.,  430.  ■*  McCurdy  v.  Broiun,  1  Duer,  101. 

*  Code,  §  304.  snbd.  4.  •  2  R.  S.,  308,  §  33. 

II.— 2. 


10  ADMINISTRATION   OF   CIVIL  JUSTICE. 

for  the  recovery  of  dower.^ "  The  jndgment  should  contain 
an  exact  description  of  the  premises  and  provide  for  the 
recovery  thereof  It  is  a  proceeding,  in  substance,  under 
the  Eevised  Statutes,  and  cannot  be  extended  beyond  such 
statutory  provisions.'  Should  the  rights  of  the  plaintiff 
tt)  the  possession  of  the  premises  cease  during  the  pendency 
of  the  action,  he  can  take  judgment  only  for  his  costs  and 
damages  and  not  for  the  possession.^ 

Wciste,  actiojis  in  the  nature  of  it. 
The  formal  action  of  waste  is  abolished  by  the  Code.^ 
But  that  class  of  wrongs  which,  under  the  former  practice, 
were  remedied  by  that  action,  may  still  be  pursued  under 
the  provisions  of  the  statute  without  regard  to  the  form 
of  the  action  so  far  as  the  same  are  applicable.^  The 
jndgment  in  such  action  may  be  for  damages,  forfeiture 
of  the  estate  of  the  party  offending,  and  eviction  from  the 
premises."  But  judgment  of  forfeiture  and  eviction  can 
be  given  in  favor  of  the  person  entitled  to  the  reversion 
against  the  tenant  in  possession,  only  when  the  injury 
to  the  estate  in  reversion  shall  be  adjudged  in  the  action 
to  be  equal  to  the  value  of  the  tenant's  estate  or  unexpired 
term,  or  to  have  been  done  in  malice.'^  When  the  judg- 
ment is  to  be  for  damages,  eviction  and  forfeiture,  all  the 
necessary  facts  to  sustain  such  judgment  according  to  the 
provisions  of  the  statute^  should  be  averred,  proved  and 
found.'*  In  such  case  the  jury  should  designate  the  place 
alleged  to  be  wasted  and  the  amount  of  damage;  and  if 
the  plaintiff  fails  to  prove  that  the  injury  to  his  estate  is 
equal  to  the  value  of  the  defendant's  estate,  he  cannot 
have  judgment  to  recover  the  place  wasted  and  treble 
damages,  for  such  an  allegation  in  the  complaint  is  not 
admitted  by  the  default  of  the  defendant.^ 

N'uisance. 
Judgment  in  actions  in  the  nature  of  the  former  action 
of  nuisance  are  likewise  special,  and  may  be  for  damages, 
or  abatement  of  the  nuisance,  or  for  both.^" 

'  §  43.  *  §  450. 

'  Code,  §  455;  see  Thompson  v.  Slier-    '  Code,  §  451. 

rard,  35  Barb.,  593;  22  How.,  155;     *  Code.  §  450. 

12  Abb.,  427.  '  Code,'  §  452. 

^  Lanq  V.  Wilbraham,  2  Diier,  171.  =  2  R.  S.,  334,  §§  5,  &c. 

'  Harder  v.  Harder,  26  Barb.,   409.     For   practice   in   these   cases,   see,  posi~ 
Action  in,  the  nature  of  waste. 
"Code,  §  454;  see,  _pos<,  Action  for  nuisance. 


OF   THE   AMENDMENT   OF   JUDGMENTS.  11 

Cori^oratlons. 

Where  iu  an  action  against  a  corporation  in  which  it 
shall  be  adjudged  that  by  neglect,  abuse  or  surrender,  it 
has  forfeited  its  corporate  rights,  privileges  and  franchises, 
the  judgment  may  be  so  rendered  as  to  exclude  it  from 
using  such  corporate  rights,  privileges  and  franchises,  and 
may  dissolve  the  same.^ 


CHAPTER  11. 

OF   THE   AMENDMENT   OF   JUDGMENTS. 

The  court  may,  before  or  after  judgment,  in  furtherance 
of  justice,  and  on  such  terms  as  may  be  proper,  amend 
any  pleading,  process  or  proceeding,  by  adding  or  striking 
out  the  name  of  any  party,  or  by  correcting  a  mistake  in 
the  name  of  a  party,  or  a  mistake  in  any  other  respect, 
or  by  inserting  other  allegations  material  to  the  case,  or, 
when  the  amendment  does  not  change  substantially  the 
claim  or  defense,  by  conforming  the  pleading  or  proceed- 
ing to  the  facts  proved.^  But  such  amendment  can  be 
ordered  only  by  the  court  in  which  the  action  is  com- 
menced or  where  it  originated.^  Consequently  the  supreme 
court  has  no  power  to  amend  the  record  brought  into  it 
on  an  appeal  from  an  inferior  court.^  The  application  to 
amend  should  be  made  in  the  court  below,  and  where  the 
amendment  has  been  made,  the  copy  furnished  the  appel- 
late court  may  be  amended  to  conform  thereto.*  Upon 
an  appeal  to  the  general  term,  the  court,  however,  may 
treat  the  pleading  as  having  been  amended  so  as  to  con- 
form to  the  facts  proved,  in  any  respect  in  which  such 
amendment  should  be  allowed  on  application  to  the  special 
term,^  and  the  same  has  also  been  done  in  the  court  of 
appeals.^ 


*  Code,  §  442.  *  Boiodoin   v.    Coleman,   3    Abb.,   431  ; 
'  Code.  ^  173.  Harrower  v.  Harth.  19  Barb.,  331. 

'  Gouhl  V.  Gould.  19  Barb.,  186.  "  Bate  v.  Graham,  U  N.  Y.,  237. 

*  Luyster  v.  Sniffin,  3  How.,  250. 


12  ADMINISTRATION   OF   CIA^IL   JUSTICE. 

To  entertain  an  application  of  this  kind  the  court  must 
be  satisfied  that  there  has  been  some  mistake  or  omission 
in  the  original  proceedings.^  The  court  will  not  entertain 
a  motion  to  correct  a  final  decree  regularly  entered  and 
enrolled  unless  by  the  consent  of  the  i)arties.  The  only 
method  by  which  that  can  be  elfected  is  by  bill  of  review.^ 
The  amendments  authorized  by  the  Code'  do  not  include 
judicial  errors  in  rendering  the  judgment  itself.* 

This  extraordinary  power  vested  in  the  discretion  of  the 
court  to  allow  a  pleading  to  be  amended  after  judgment, 
by  inserting  new  allegations  material  to  the  case,  Avill  only 
be  allowed  for  the  i)urpose  of  sustaining  the  judgment.' 
The  object  to  be  gained  by  allowing  to  the  court  the  exer- 
cise, in  its  discretion,  of  this  power,  is  the  furtherance  of 
justice;  consequently,  when  that  end  will  be  likely  to  fail 
unless  this  power  is  exercised,  the  court  will  prudently 
exercise  it.  Thus,  when  the  complaint  was  for  goods 
sold,  the  agistment  of  cattle,  and  for  use  and  occupation  ; 
and  on  trial  before  the  referee,  he  found  as  a  fact,  that  the 
defendant  had  agreed  to  pay  the  plaintitf  on  settlement, 
one  hundred  dollars ;  and,  basing  his  decision  on  that 
agreement,  he  found  for  the  i)laintiff  $100;  on  appeal 
from  the  judgment  on  the  referee's  report,  advantage  was 
sought  to  be  taken  of  the  variance  between  the  i)leadings 
and  the  proof.  To  obviate  this  difficulty  the  plaintiff 
moved,  at  special  term,  for  leav-e  to  amend  his  complaint 
so  as  to  conform  it  to  the  proof.  He  was  permitted  to 
amend  on  terms  of  paying  defendant's  costs,  and  the  costs 
of  the  motion.*^ 

The  jury  cannot  properly  give  damages  for  a  larger 
amount  than  is  claimed  in  the  complaint ;  and  where  they 
do  so  the  clerk  should  enter  it  for  only  the  amount  thus 
churned.  The  practice  usually  is  for  the  plaintiff"  to  remit 
the  excess."  But  the  plaintitf'  may  have  leave  to  amend 
his  complaint  by  increasing  his  damages,  where  justice 
requires  that  it  should  be  allowed.  It  has  been  said  that 
this  leave  will  be  granted  only  on  condition  of  submitting 


•32    Barb.,    534;    20    How.,    225;    11     '  §  HS. 

Abb.,  419;   21  How.,  360.  *  kotailing  v.  Marsh,  14  Abb.,  161. 

^  Picdbia  v.  EcLvxirda,  4  How.,  113. 

^  See  Field  V.  Eawkshurst,  9  How.,  75;  Egert  v.  Wicker,  10  How.,  193;  Engless 
V.  Furniss,  3  Abb..  82 ;   Gasper  v.  Adams,  24  Barb.,  288. 

*  Prindk  v.  Aldrich,  13  How.,  466. 

'  5  Hill,  16;  4  M.  &  S.,  94;    Corning  v.  Corning,  1  Code  Rep.  [N.  S.l  351;  6  N. 
Y.,  97. 


OF   THE   AMENDMENT   OF  JUDGMENTS.  13 

to  a  new  trial.^  There  may  be  eases,  however,  where 
justice  would  require  that  the  pkiiutilf  should  have  leave 
to  euhirge  his  damages  without  such  terms ;  as  iu  case  of 
protracted  litigatiou  ou  the  part  of  the  defendant,  where 
by  reason  of  the  delay  occasioned,  the  interest  added  to 
the  principal  would  cause  the  sum  to  exceed  the  amount 
named  in  the  complaint.  Perhaps  there  are  no  cases  in 
the  books  authorizing-  the  exercise  of  so  large  a  discretion  ; 
but  the  'f  furtherance  of  justice  "  aimed  at  bj'  the  Code 
would,  nevertheless,  require  it. 

Such  amendments  of  proceedings  prior  to  judgment  for 
the  purpose  of  sustaining  the  judgment  are  not  unfrequently 
allowed  to  be  made  nunc  pro  tunc  for  the  purpose  of  curing 
mere  irregularities.^  A  technical  defect  in  the  summons 
may  be  amended  f  so  in  respect  to  proof  of  service  ;*  so, 
likewise,  a  technical  defect  in  any  of  the  proceedings,  as 
an  omission  to  enter  a  formal  rule  carrying  into  effect  the 
decision  of  the  courts  f  so,  also,  the  docket  of  a  judgment 
may  be  amended.^  The  court  will  sometimes  allow  the 
phnntiff  to  amend  so  as  to  cure  an  irregularity  which 
would  otherwise  have  been  fatal  to  his  judgment,  when 
the  defendant  has  been  guilty  of  laches  in  applying  to 
vacate  such  judgment.^ 

Jurisdictional  defects  cannot  thus  be  amended  ;  such  as 
an  imperfect  service  by  publication  and  the  like.*^  When 
the  jurisdiction  of  the  court  is  strictly  statutory,  it  can  be 
acquired  only  iu  the  manner  prescribed  by  statute.  Thus, 
where  the  affidavit,  upon  which  an  order  of  service  of 
summons  by  publication  was  granted,  did  not  show  that 
the  residence  of  the  defendant  was  unknown  and  could 
not,  with  reasonable  diligence,  be  ascertained,  the  court 
did  not  acquire  jurisdiction  to  proceed  in  respect  to  such 
defendant.^  Where  the  court  has  not  obtained  jurisdic- 
tion, its  proceedings  will  be  void,  and  no  amendments  can 
remedy  the  defect. 


*  Bowman  v.  Earle,  3  Duer,  691. 

'  Crofjhan  v.  Livingston,  17  N.  Y.,  218;    Wright  v.  Aldm,  3  How.,  313;    Van 
■Wycfi-e  V.  Hardy.  20  How.,  222;  Lewis  v.  Jones,  13  Abb.,  427. 

^  Sluyter  V.  Smilh,  2  Bosw.,  Q13.  '  Wlntehead  v.    Pecare.    9   How.,    35; 

*  17  How.,  477 ;  9  Abb..  61.  Dart  v.  McAdam,  27  Barb.,  187. 
°  Scars  V.  Burnham.  17  X.  Y.,  445. 

^  Jones  V.  The  United  Slates  Slate   Co.,   16  How.,  129. 

'  Kendall  V.  Washburn,  14  How.,  380:    diok  v.  Farrm.  34  Barb.,  95;  21  How., 
286;   12  Abb.,  359;  FiskY.  Anderson,  33  Barb.,  71;   12  Abb.,  8. 
"  Cook  V.  Far r en,  supra. 


14  AD^rCSriSTEATION  OF  CIVIL  JUSTICE. 

It  is  to  be  observed  that  tbese  amendments  can  be 
made  only  upon  the  order  of  the  court,  which  should 
specify  the  particular  amendment  to  be  made,  and  which 
should  also  be  appended  to  the  judgment  record.  There 
should  be  no  erasures  in  the  record.  The  proper  method 
of  making-  such  amend  luent  is,  by  including  the  parts 
stricken  out,  by  brackets  or  lines  drawn  around  them, 
together  with  an  entry  in  the  margin  referring  to  the 
order.  If  the  party  desire  it,  the  judgment  may  be 
entered  at  length  as  amended.^ 

W/iefi  judgments  may  he  set  aside. 

When  there  has  been  any  substantial  irregularity  in 
the  proceedings  by  which  judgment  has  been  obtained, 
it  will  lay  the  foundation  for  an  order  to  vacate  the  same. 
Thus,  where  there  has  been  an  insufficient  service  of  the 
summons,  as  putting  the  defendant  in  the  unknown  pos- 
session thereof;  so  as  to  conceal  from  him  the  knowledge 
which  it  is  the  purpose  of  the  law  to  give  him  by  the 
service  of  the  summons;^  or,  when  the  service,  by  mis- 
take, was  made  upon  the  wrong  person,  although  the 
summons  afterwards  came  to  the  possession  of  the  defend- 
ant;^ or  where,  under  the  act  "to  facilitate  the  services  of 
process  in  certain  cases,"*  service  is  made  at  the  residence 
of  the  defendant  in  New  York,  while  the  plaintiff  knew 
the  defendant  was  absent  in  California,^  because  the  ijlain- 
tift"  is  not  entitled  to  substituted  service  under  that  act, 
when  the  papers  show  where  the  absent  defendant  can  be 
found.'' 

So,  also,  when  the  judgment  was  based  upon  an  amended 
complaint  served  upon  the  person  of  the  defendant  after 
he  had  appeared  by  attorney,  rather  than  upon  his  attor- 
ney, the  judgment  was  vacated  upon  motion ;"  or  where 
judgment  was  taken  without  service  of  a  copy  of  the 
complaint  after  it  had  been  demanded.^ 

So  when  the  defendant  is  entitled  to  notice  of  assess- 
ment of  damages,  and  the  judgment  is  entered  up  without 
such  notice,  it  will  be  irregular  f  so,  likewise,  on  default, 
if  judgment  be  taken  for  relief  not  demanded  by  the  com- 


'  Sluyter  v.  Smith  2  Bosw.,  678.  °  Foot  v.  Harris,  2  Abb.,  454. 

^  See  Bulkley  v.  Bulkley,  6  Abb.,  307.  '  7  Abb.,  325. 

*  16  How.,  144.  »  8  Abb.,  418. 

*  L.  1853,  ch.  511.  *  Quinn  v.  Tillon,  2  Duer,  648. 

*  Jones  V.  Derby,  1  Abb.,  458. 


or  THE  AMENDMENT  OF  JUDGMENTS.  15 

plaint,  or  in  excess  of  tbat  demanded;^  so,  likewise,  a  refer- 
ence to  ascertain  damages,  where  tbey  should  be  assessed 
by  a  sheriff's  jury,  is  an  irregularity  which  will  vitiate  the 
judgment/ 

When  an  attorney  who  is  insolvent  has  appeared  for  a 
party  without  authority,  and  his  insolvency  is  made  to 
appear  in  the  moving  papers,  the  judgment  may  be 
opened  and  the  party  be  let  in  to  defend.^  Although  it 
might  be  otherwise  if  the  attorney  were  responsible.'  It 
has  been  held,  however,  that  the  court  will  not  compel 
the  party  to  seek  his  remedy  against  the  attorney  in  such 
case.* 

If,  pending  a  stay  of  proceedings  binding  upon  the 
parties,  a  judgment  be  entered,  it  will  be  irreguhir  and 
may  be  set  aside.^  It  will  be  the  same  if  the  judgment  be 
entered  Avith  knowledge  that  a  stay  of  proceedings  had 
been  granted,  altliough  it  was  done  before  the  actual 
service  of  the  order.'' 

Tlie  rule  would  seem  to  be  that  when  there  is  a  substan- 
tial irregularity  in  any  part  of  the  proceedings  to  obtain 
the  judgment,  by  which  the  defendant  might  have  been 
deprived  of  any  of  his  rights  in  making  his  defense,  it  lays 
the  foundation  for  a  motion  to  vacate  a  judgment  based 
thereon. 

Where  the  irregularity  complained  of  is  merely  technical 
in  its  character,  possessing  no  real  merit,  involving  no 
question  affecting  the  jurisdiction  of  the  court,  no  surprise 
of,  or  unfairness  toward,  the  party  complaining,  the  judg- 
ment will  not  be  disturbed."  Thus,  when  the  defendant's 
attorney  sends  a  person  to  serve  an  answer  upon  the 
attorney  of  the  plaintiff,  which  answer  is  rejected  because 
not  served  in  season,  and  is  sent  back,  and  the  same 
answer  is  sent  a  second  time,  and  not  again  sent  back,  it 
is  a  mere  technical  objection  that  the  plaintiff's  attorney 
omitted  to  send  back  the  answer  a  second  time  ;  and  the 
judgment  entered  as  for  want  of  an  answer  will  not  be 
disturbed  on  such  objection.^  The  court  is  bound  to  disre- 
gard, or  order  amended,  any  defect  in  the  entry  of  judg- 
ment, which  does  not  affect  the  substantial  rights  of  the 


'  20  How..  484.  °  12  Abb.,  187. 

*  8  How..  346.  '  13  How.,  405:  20  id.,  215;  13  Abb., 

'  See  2  Hilt..  236;  9  How.,  442.         427. 

•31  Barb.,  134.  «  6  Duer,  689. 

'  10  Abb.,  448;  12  id.,  388. 


16  ADMINISTRATION  OF   CIVIL  JUSTICE. 

adverse  party.'  So,  when  the  title  of  the  party  to  have 
.iudii'ineiit  is  luiqiiestionable,  it  will  not  be  vacated  even 
ilioiiiih  it  has  been  somewhat  irregularly  entered.^ 

The  application  to  vacate  a  judgment  for  irregularity  in 
the  proceetlings  is  made  hj  motion  on  service  of  the  ordi- 
nary notice  that  such  application  will  be  made,  which 
notice  must  specify  distinctly  the  irregularities  upon 
which  the  motion  for  relief  is  based.^  The  affidavit 
accompanying  the  motion  must  clearly  establish  the 
irregularities  complained  of,  and  should  embrace  all 
the  grounds  upon  which  the  party  relies  for  setting 
aside  the  judgment;  as  the  moving  i)arty  is  bound  to  bring- 
forward  all  his  objections  in  the  first  instance,  and  cannot 
renew  the  motion  upon  new  grounds  known  to  him  at  the 
time  of  making  his  first  motion.* 

This  application  should  be  made  at  special  term,  even 
when  the  judgment  has  been  entered  at  the  general  term, 
if  the  point  in  respect  to  which  the  irregularity  was 
involved  was  not  before  the  general  term.^  But  when  the 
irregularity  complained  of  has  resiject  to  the  action  and 
judgment  of  the  general  term,  then  the  motion  should  be 
made  at  the  general  term.'^ 

The  motion  should  be  made  immediately  on  the  discov- 
ery of  the  irregularity  complained  of;  and  any  unreason- 
able delay  after  such  discovery  might  b6  a  caase  for 
refusing  the  order  to  vacate,  and  allowing  the  ft^Tversary 
to  amend  his  proceedings,'^  especially  is  this  tfe^  case  when 
the  irregularity  is  in  the  preliminary  proceedings."  In 
every  l^se  the  motion  must  be  made  within  one  year  from 
the  entry  of  tJlae  judgment.^ 

This  motion  can  only  be  made  by  a  party  to  the  record.^ 

When  an  execution  has  been  issued  upon  the  judgment 
and  put  into  the  hands  of  the  sheriff  previously  to  the 
granting  of  the  order,  it  would  be  proper  for  the  prevail- 
ing party  to  serve  upon  such  sheriff  a  certified  copy  of  the 
order  vacating  such  judgment.  So,  also,  when  transcripts 
of  such  judgment  have  been  sent  to  different  counties  for 
the  inirpose  of  obtaining  liens  on  property,  special  instruc- 


'  9  How..  35.  =  11  How.,  91:   16  id.,  129. 

^  8  Abb..  49.  '  See  4  E.  D.  Smith.  428. 

^  Rule  39;  22  How..  477.  «  Code.  §  174;  8   How.,  312;  2  R.  S., 

*  Fattiton  v.  Bacon,  21  How,,  478;  12  359.  §  2;  2  N.  Y.  S.  at  L.,  371. 

Abb..  142.  .  »  9  N.  Y.,  73. 

^9  How.,  573;  1  Abb.,  130. 


OF  THE  AMEilDMENT  OF  JUDGMEXTS.  17 

tions  to  the  clerks  of  such  counties  may  be  iucluded  in  the 
order,  directing  the  clerks  to  make  the  proper  entries  in 
the  judgment  books,  for  the  purpose  of  discharging  the 
liens  thus  attaching  to  real  property. 

When  the  judgment  has  been  rendered  in  a  case  where 
the  service  of  process  was  by  pubUcation,  the  relief  to  be 
granted  is  a  matter  of  special  provision,  as  provided  for  by 
the  Code,^  In  such  case  the  application  must  be  made 
within  one  year  after  notice  of  the  judgment,  and  within 
seven  years  after  its  rendition.  The  application  under 
these  provisions  is  upon  motion,  notice  and  affidavit, 
showing  upon  its  face  the  date  of  the  entry  of  judgment, 
and  the  nature  of  the  action,  that  the  notice  of  the  judg- 
ment had  not  been  received  by  the  applicant  until  within 
one  year  previous  to  such  application;  together  with  the 
date  and  manner  of  receiving  such  notice ;  showing,  also, 
good  cause  why  such  applicant  should  be  allowed  to 
defend,  and  also  the  nature  of  the  defense,  and  it  would 
be  advisable  to  have  prepared  and  submit  with  the 
moving  papers,  the  answer  proposed  to  be  tiled.  This 
application  is  addressed  to  the  discretion  of  the  court,  and 
will  be  granted  upon  such  terms  as  may  be  deemed  just, 
allowing  the  judgment  to  stand  as  security,  when  the 
same  is  deemed  to  be  reasonable.^ 

Of  the  satisfaction  of  judgment^  its  discharges. 

The  docket  of  a  judgment  rendered  in  a  court  of  record 
may  be  canceled  and  discharged  by  the  clerk  of  the  court, 
upon  filing  with  him  an  acknowledgment  of  satisfaction, 
signed  by  the  party  in  whose  favor  it  was  obtained, 
or  by  his  proper  representati^-e.^  But  such  acknowledg- 
ment must  be  made  before  a  judge  of  the  court  in  which 
the  judgment  was  rendered,  or  before  some  judge  of 
the  county  courts,  or  commissioner  of  deeds,  who  must 
certify  that  the  party  making  the  acknowledgment  is 
known  to  the  officer,  or  was  made  known  by  competent 
proof.*  Or  the  same  acknowledgment  may  be  made  by 
the  attorney  of  record  of  the  party  in  whose  favor  the 
same  was  rendered  within  two  years  after  the  filing  of  the 
record  of  such  judgment,  in  the  same  manner  and  with 


»  Code,  §  135.  *  2  R.  S.,  362,  §  22;  2  N.  Y.  S.  at  L., 

«  12  How.,  445.  375.  *  Idem.,  §  23. 

II.— 3 


18  ADMimSTEATIOK  OF  CIVIL  JUSTICE. 

the  like  effect  as  if  made  by  such  party  himself.  But 
such  satisfaction  is  not  to  be  conclusive  in  respect  to  any 
person  having  notice  of  the  revocation  of  the  authority  of 
such  attorney,  prior  to  any  payment  on  such  judgment, 
or  the  purchase  of  any  property  bound  by  it.^  The  judg- 
ment is  also  satisfied  by  the  satisfaction  of  an  execution 
issued  thereon;  the  judgment  will  be  satisfied  to  the  same 
extent  as  the  execution  issued  thereon.^  But  if  the  sheriff 
fails  to  execute  the  process  according  to  the  due  course  of 
the  law,  and  improperly  returns  the  execution  as  satisfied, 
it  will  be  no  satisfaction  of  the  judgment ;  as,  where  the 
sheriff,  instead  of  making  a  levy,  took  the  defendant's 
note  and  receipted  it  as  a  payment  in  full,  and  returned 
the  execution  satisfied,  it  was  held  that  the  sheriff  had  no 
power  to  discharge  an  execution  unless  he  proceeded  to 
execute  it  in  due  course  of  law.^ 

It  was  formerly  held  that  a  levy  on  personal  property 
suflicient  to  satisfy  the  execution  operated,  -per  se,  as  an 
extinguishment  of  the  judgment  on  which  the  execution 
was  issued.*  But  the  more  modern  doctrine  seems  to  be 
that  such  a  levy  is  only  a  satisfaction  siib  moclo,  and  does 
not  amount,  necessarily,  to  a  satisfaction  ^?er  se.^  That 
where  the  levy  fails  to  produce  satisfaction,  in  fact,  with- 
out any  fault  of  the  plaintiff,  he  may  still  proceed  to 
obtain  execution  of  his  judgment;^  as  where  the  levy  was 
not  proceeded  with  on  account  of  doubts  existing  as  to 
the  right  of  property,  raised  by  the  defendant  himself." 
But  a  levy  upon  sufficient  personal  in'operty  to  satisf}^  the 
execution,  voluntarily  relinquished  by  the  plaintiff,  would 
be  an  extinguishment  of  the  judgment  as  to  a  subsequent 
bona  fide  purchaser,  for  a  valuable  consideration,  of  lands 
bound  by  the  judgment.^ 

A  levy  upon  land  is  not,  in  any  sense,  a  satisfaction  of 
the  judgment.  But  if  the  plaintiff  purchases  land,  under 
his  execution,  for  an  amount  sufiicient  to  satisfy  it,  his 
judgment  is  extinguished,  even  though,  by  reason  of  a 
defect  in  the  title,  he  is  still  a  creditor  of  the  defendant.^ 
Though  a  creditor,  he  is  not  a  judgment  creditor,  &c. 


'  Idem.,  §  24.  '4  Hill,  621 ;  23  Wend.,  490. 

'  Idem.,  §  26.  ^  23  Wend.,  490. 

'  1  Cow.,  46.  '  8  Cow.,  192. 

*  2  Ld.  Rayra.,  1072,  1  Salk.,  322;  4  ^3  How.,  262;  12  Johns.,  207;  4  Cow., 

Mass.,  403  ;  12  John.,  207  ;  4  Cow.,     417  ;  7  id.,  21. 

418;  7  id.,  20.  "  1  Barb.,  238;  3  Wend.,  637. 


OF  THE  AMENDMENT  OF  JUDGMENTS.        19 

An  action  brought  upon  a  judgment,  and  a  judgment 
recovered  therein,  is  not  a  satisfaction  of  the  original 
judgment,  when  both  judgments  are  equal  in  degree.^ 
But  it  is  otherwise  when  a  judgment  thus  recovered,  is  set 
up  by  way  of  set-otf,  in  an  action  brought  by  the  original 
debtor,  aud  the  jury  find  in  favor  of  such  debtor?  So, 
where  there  are  two  suits  for  the  same  cause  of  action 
and  both  joroceed  to  judgment,  a  satisfaction  of  either 
judgment  is  a  satisfaction  of  both.^ 

Payment  also  satisfies  the  judgment,  so  that  it  cannot 
be  kept  alive  to  cover  new  demands/  But  a  judgment 
against  the  maker  and  indorser  of  a  note  under  the  act 
authorizing  such  parties  to  be  joined  is  not  extinguished 
by  being  paid  and  assigned  to  the  indorser.  For  the  pur- 
pose of  preserving  the  rights  of  the  parties  it  is  to  be 
deemed  a  several  judgment.^ 

The  taking  of  the  defendant  in  execution  is,  to  a  certain 
extent,  a  satisfaction  of  the  judgment.''  Hence  a  judg- 
ment creditor  who  has  taken  his  debtor  in  execution  cannot 
afterwards  be  a  petitioning  creditor  under  the  insolvent 
act.''  So,  when  the  plaintiff,  having  the  defendant  in 
execution,  consents  to  his  discharge,  it  is  equivalent  to  a 
release  or  discharge  of  the  judgment  f  so,  also,  a  volun- 
tary discharge  of  the  defendant  from  the  jail  liberties, 
discharges  the  debt  although  not  so  intended.^  An  assent 
or  agreement  subsequent  to  the  escai)e  that  the  debtor 
may  remain  at  large  has  not  such  an  effect.^" 

But  such  taking  of  a  defendant  in  execution  is  not  an 
actual  discharge  or  satisfaction  of  the  judgment  so  as  to 
bar  the  plaintiff  from  taking  out  execution  against  other 
persons  liable  for  the  same  debt  or  damages."  But  where 
the  plaintiff  consents  to  discharge  one  of  several  defend- 
ants taken  on  a  joint  capias  ad  satisfaciendum,  he  cannot 
afterwards  retake  him  or  any  of  the  other  defendants.^^  The 
discharge  of  one  of  two  defendants,  taken  on  a  joint  writ, 
under  the  insolvent  debtors'  act,  does  not  operate  as  a 
discharge  to  the  other,'^  for  it  is  not  by  the  consent  of  the 
plaintiff,  &c. 


'  1  Cow.,  118.  ''  1  Johns.  Ch.,  430. 

^  1  Cow..  208.  *  11  John.,  476;  4  Burr,  2482. 

^  9  Johns..  221;  4  id.,  469.  »  3  Wend.,  184;  5  Johns.,  363. 

*  6  F.  Y.,  74".  '"  16  John.s.,  181. 

*  3  Barb.,  12;   21  id.,  531;   14  id.,  481;    "  5  Taunt,   614. 

1 1  How.,  209.  "  6  Burn.  &  East.,  525. 

*  Tidd  Pr.,  1069.  "  5  East.,  147. 


20  ADMINISTKATION  OP  CIYIL  JUSTICE. 


CHAPTER  III. 


THE  EXECUTION. 


A  jndgmeTit  of  the  court  is  to  be  executed  either  by  a 
person  acting  as  an  officer  of  the  court,  under  its  warrant 
or  process,  or  by  attachment.  The  Code  provides  that 
where  a  judgment  requires  the  payment  of  money  or  the 
delivery  of  real  or  personal  property,  it  may  be  enforced 
in  those  respects  by  execution  as  provided  for  therein; 
and  where  it  requires  the  performance  of  any  other  act, 
a  certified  copy  of  the  judgment  may  be  served  upon  the 
party  against  whom  it  is  given,  or  the  person  or  ofiicer 
who  is  required  thereby  by  law  to  obey  the  same  and  his 
obedience  thereto  enforced.  And  if  he  refuse,  he  may  be 
punished  by  the  court  as  for  a  contempt.^ 

There  are  three  kinds  of  executions:  one  against  the 
property  of  the  judgment  debtor;  another  against  his 
person ;  and  the  third  for  the  delivery  of  the  possession 
of  real  or  personal  property,  or  such  delivery  with  damages 
for  withholding  the  same.  They  are  the  processes  of  the 
court,  though  not  under  seal  or  subscribed  by  any  of  its 
oflicers.^ 

When  it  may  he  issiced. 

The  party  iu  whose  favor  judgment  has  been  heretofore 
or  shall  hereafter  be  given,  may,  at  any  time  within  five 
years  after  the  entry  of  judgment,  proceed  to  enforce  the 
same  by  execution  in  the  njanner  prescribed  by  the  Code.^ 
But  an  execution  upon  a  judgment  cannot  be  issued  upon 
application  on  the  part  of  a  deceased  plaintiff;  the  pro- 
visions of  sections  283  and  284  are  held  to  be  applicable 
only  when  the  parties  are  living.'* 

The  judgment  roll  must  be  filed  before  the  issuing  of 
the  execution,  or  it  will  be  set  aside,  on  motion,  for  irregu- 

'  Code.  §  285.  *  Thruston  v.  King.  1  Abb.,  126 ;  Wheeler 

*  Code,  I  286,  V.  Dakin,  12  Hov?.,  537. 

•  Code,  §  283. 


THE  EXECUTION.  21 

larity,^  altliougb  if  issued  previously  on  the  same  day,  and 
the  moving  party  has  not  been  injured  thereby,  it  will  not 
be  deemed  irregular.^  The  execution  may,  in  fact,  be 
delivered  to  the  sheriff  before  judgment  perfected,  with 
instructions  to  indorse  it  as  received  at  a  time  after  the 
filing  of  the  record,  which,  if  obeyed,  will  be  regular.^ 

An  alias  execution  may  be  issued  when  the  original  one 
has  been  ineffectual  for  collecting  the  amount  of  the  judg- 
ment. Such  further  executions  may  be  issued  as  often  as 
necessary  until  the  judgment  is  satisfied.  The  mere  issuing 
of  an  execution,  or  even  a  levy  thereof,  when  the  property 
has  not  been  removed  or  sold,  is  not  a  satisfaction  of  the 
judgment,*  and  such  execution  may  be  issued  at  any  time 
after  five  years  from  tbe  rendition  of  the  judgment,  pro- 
vided an  original  execution  has  been  issued  within  five 
years  and  has  been  returned  unsatisfied. 

So  where  the  debtor  has  been  taken  in  execution,  and 
has  escaped,  a  new  execution  against  his  body  may  be 
issued,  or  an  execution  against  his  property,  in  the  same 
manner  as  if  his  body  had  never  been  taken.^  So  likewise 
where  the  judgment  debtor  dies  in  execution  a  new  one 
may  be  issued;^  but  it  must  not  be  levied  upon  any  real 
estate  sold  by  the  deceased  in  good  faith  after  the  rendi- 
tion of  the  judgment  against  him,^  nor  upon  any  real 
estate  actually  sold  under  any  other  prior  or  subsequent 
judgment  against  the  debtor  dying  in  execution.^  A  fur- 
ther execution  may  also  be  issued  when  a  sale  of  real 
estate  under  a  prior  one  has  been  set  aside  and  the  pur- 
chaser has  been  evicted  and  the  purchase-money  recovered 
back.^ 

The  right  to  issue  an  execution  upon  a  judgment  may 
be  temporarily  suspended  by  the  death  of  the  party  after 
judgment,'"  so  also  where  a  default  has  been  opened  and 
the  judgment  has  been  allowed  to  stand  as  security  until 
the  final  disposition  of  the  matter." 

'No  execution  against  the  body  can  be  issued  while  there 


*  Barrie  v.  Dana,  20  Johns.,  307;  and  '  Idem.,  §  29. 

see  5  Wend.,  109.  « Idem.,  §  30. 

»  3  Cow.,  19;  4  Denio,  41.  '  2  R.  S.,  375,  §  69;  2  N.  Y.  S.  at  L., 

*  Walters  V.  S^A;e5,  22  Wend.,  566.  389;    see   also   19   Wend.,    80;    5 

*  Peek  V.  Tiffany,  2  N.  Y.,  451.  Cow.,  280. 

"  2  R.  S.,  364,  §  8;  2  N.  Y.  S.  at  L.,  "  2  R.  S.,  368,  §  27;  2  N.  Y.  S.  at  L., 

377;  see  also  §§  6,  7.  381. 

*  2  R.  a,  368,  §  28;  2  N.  Y.  S.  at  L,  "  9  Abb.,  416. 

38L 


22  ADlVrmiSTEATION   OF   CIVIL  JUSTICE. 

is  one  against  liis  property  unreturned ;  nor  can  an  execu- 
tion against  tlie  property  of  a  party  be  issued  while  there 
is  one  against  his  body  unreturned,  unless  by  order  of  the 
court.^  So  where  the  body  of  a  party  has  been  taken  on 
execution  issued  for  that  puri)ose,  no  other  execution  can 
be  issued  against  him  or  his  property,  except  in  cases 
specially  provided  by  law.^ 

To  xohat  county  to  issue. 

AYhen  the  execution  is  against  the  property  of  the  judg- 
ment debtor,  it  may  be  issued  to  the  sheriff  of  any  county 
where  judgment  is  docketed.  When  it  requires  the  de- 
livery of  real  or  personal  property,  it  must  be  issued  to 
the  sheriff  of  the  county  where  the  property  or  some  part 
thereof  is  situated.  And  executions  may  be  issued  at  the 
same  time  to  different  counties,^  and  when  the  execution 
is  issued  upon  a  judgment  in  an  action  in  which  the  de- 
fendant might  have  been  arrested,  as  provided  in  sections 
179  and  181  of  the  Code,  if  it  be  against  the  person  of  the 
judgment  debtor,  it  may  be  issued  to  any  county  within 
the  jurisdiction  of  the  court,  after  the  return  of  an  execu- 
tion against  the  debtor's  property  unsatisfied  in  whole  or 
in  part,*  and  such  execution  thus  returned  unsatisfied 
must  have  been  issued  to  the  county  where  the  defendant 
resides,  or  where  he  is  taken  in  execution.^  The  Code  has 
not  required  the  execution  to  be  issued  to  the  county  where 
the  defendant  resides  f  it  will  be  suflicient  if  it  be  issued 
to  the  county  where  he  is  arrested,  but  it  should  be  issued 
to  the  one  or  the  other  of  such  counties. 

The  object  of  requiring  the  x)laintiff  first  to  issue  an 
execution  against  the  property  of  the  defendant  is  to  pre- 
vent him  from  taking  an  execution  against  the  body  of  a 
defendant  who  might  have  property  enough  to  pay  the 
debt;  and,  therefore,  when  several  defendants  in  several 
counties  were  held  to  bail,  at  the  suit  of  the  plaintiff,  and 
he  obtained  judgment  against  them  and  issued  a  ji.  fa. 
against  all  the  defendants  to  the  sheriff  of  the  county  in 
which  one  only  of  them  was  subsequently  arrested,  and 
it  was  returned  nulla  hona;  and  thereupon  the  plaintiff 


"  2  R.  S.,  364,  §  6;  2  N.  Y.  S.  at  L.,     *  Code,  §  288. 

377.  ^  2  R.  S.,  363,  §  4;   18  Johns.,  305. 

«  Idem.,  §  7.  »  3  Abb.,  229. 

»  Code,  §  287. 


THE  EXECUTIOJf.  23 

issued  an  execution  against  the  defendants,  directed  to  the 
sheriff  of  a  different  county  into  which  no  fieri  facias  had 
been  issued,  and  one  of  the  defendants  was  there  arrested, 
it  was  held  to  be  irregular,  not  being  in  accordance  with 
the  statute,  and  the  defendant,  thus  arrested,  was  dis- 
charged.^ 

WTioi  necessary  to  apply  for  leave  to  issue. 

The  Code,  according  to  the  provisions  of  which  execu- 
tions for  the  enforcement  of  judgments  are  to  be  issued, 
provides  that  after  the  lai)se  of  five  years  from  the  entry 
of  judgment  an  execution  can  be  issued  only  by  leave  of 
the  court,  upon  motion,  with  personal  notice  to  the  adverse 
party,  unless  he  be  absent  or  a  non-resident,  or  cannot  be 
found  to  make  such  service,  in  which  case  such  service 
may  be  made  by  publication,  or  in  such  manner  as  the 
court  shall  direct.  And  that  such  leave  shall  not  be  given 
unless  it  be  established  by  the  oath  of  the  party,  or  other 
satisfactory  proof,  that  the  judgment,  or  some  part  thereof, 
remains  unsatisfied  and  due.  Such  leave,  however,  is  not 
necessary  when  execution  has  been  issued  on  such  judgment 
within  the  five  years  and  returned  unsatisfied  in  whole  or 
in  part.^  It  further  provides  that  where  the  judgment  on 
which  execution  is  sought  to  be  issued  had  been  rendered 
in  a  coiu-t  of  a  justice  of  the  peace,  or  in  a  justices'  or 
other  inferior  court  in  a  city,  and  docketed  in  the  ofiice  of 
the  clerk  of  the  county,  application  for  leave  to  issue  an 
execution  must  be  to  the  county  court  of  the  county  where 
the  judgment  was  rendered,  or,  in  the  city  and  county  of 
Kew  York,  to  the  court  of  common  pleas  of  that  city  or 
county.^ 

Where  application  for  leave  to  issue  execution  on  a 
judgment  after  the  lapse  of  five  years  from  its  rendition 
is  made,  and  it  is  made  to  appear  to  the  court  that  the 
judgment  debtor  holds  a  judgment  against  the  party 
making  the  application  greater  in  amount  than  that  on 
which  the  application  is  based,  the  court  should  not 
grant  the  leave  but  should  put  the  party  upon  his  action 
that  the  debtor  may  avail  himself  of  his  equitable  offset.* 


■  18  Johns.,  305. 

"  Code,  §  284,  note.  But  if  an  execution  be  issued  without  leave  after  the  lapse 
of  five  years,  it  is  not  void  but  only  voidable.  Bank  of  Genesee  v.  Spencer,  18 
N.  Y.,  150;  see  al.so  21  Barb.,  311. 

*  Idem.  ♦  Belts  v.  Garr,  1  Hilt.,  411. 


24  ADMINISTRATION   OF   CIVIL  JUSTICE. 

But  on  such  application  for  leave  to  issue  execution,  it  is 
no  objection  that  the  plaintiff  has  recovered  a  new  judg- 
ment therein  which  has  not  been  satisfied.^ 

The  application  for  leave  to  issue  execution  under  section 
284  of  the  Code  should  not  be  made  until  the  expiration  of 
live  years  from  the  entry  of  judgment.^  Where  property  had 
been  sold  on  a  void  execution,  and  the  i>laiutiif,  three  years 
after  the  rendition  of  the  judgment,  applied  and  obtained 
leave  to  issue  a  new  one,  and  Ave  years  later  issued  it ; 
on  motion  to  set  the  new  execution  aside,  it  was  held  to 
be  irregular  on  the  ground  that  the  leave  granted  was  not 
such  as  is  contemplated  by  section  284  of  the  Code.^ 

Upon  such  application  the  court  cannot  go  behind  the 
judgment  or  inquire  into  its  validitj'.^ 

So  where  an  execution  is  to  be  issued  against  an  execu- 
tor or  administrator  before  a  final  settlement  of  his  accounts, 
an  order  must  first  be  obtained  from  the  surrogate  who 
appointed  him,*  and  where  the  testator  or  intestate  has 
deceased  after  the  rendition  of  judgment,  the  executor  or 
administrator  must  be  cited  to  show  cause  why  the  judg- 
ment should  not  be  enforced  against  the  estate  of  the 
judgment  debtor  in  his  or  their  hands,^  and  no  execution 
can  be  issued  until  a  new  judgment  is  entered  upon  such 
citation.^  But  in  cases  where  no  executor  or  administrator 
have  been  appointed,  the  statute  of  1850''  provides  that 
notwithstanding  the  death  of  a  party  after  judgment, 
execution  thereon  against  the  property,  lands,  tenements, 
real  estate  or  chattels  real,  upon  which  such  judgment 
shall  be  a  lien,  either  at  law  or  in  equity,  may  be  issued 
and  executed  in  the  same  manner  and  with  the  same  effect 
as  if  he  were  still  living,  except  that  such  execution  can- 
not be  issued  within  a  year  after  the  death  of  the  defend- 
ant, nor  in  any  case,  unless  upon  perujission  granted  by 
the  surrogate  of  the  county  having  jurisdiction  to  grant 
administration  or  letters  testamentary  on  the  estate  of  the 
deceased  judgment  debtor.'  Under  these  provisions  the 
creditor  is  not  required  to  wait  until  letters  of  administra- 
tion are  granted  on  the  estate  of  the  deceased  debtor  as 


Small  V.  Wheaton,   2   Abb.,   316;   S.  *  2  R.  S.,  88,  §  32;  2  N.  T.  S.  at  L., 
C,  4  E.  D.  Smith,  427.  90,  §  32;  see  also  Mills  v.  Thursby, 

Field  V.  Paulding,  1  Hilt.,  187 ;  S.  C,  2  Abb.,  432,  437. 

3  Abb.,  130.  »  Code,  §  376. 

'  Lee  V.   Watkins,  3  Abb.,  243 ;  S.   C,  ^  Bellinger  v.  Ford,  21  Barb.,  311. 

13  How.,  178.  "•  L.  1850,  ch.  295. 


THE  EXECUTION".  25 

under  the  Code,^  but  may  proceed,  after  the  lapse  of  a  year 
from  the  death  of  the  judgnieut  debtor,  upon  the  permis- 
sion of  the  proper  surrogate. 

In  proceeding  under  the  provisions  of  the  act  of  1850. 
beside  the  permission  of  the  surrogate,  the  plaintiff  should 
also  make  application  to  the  court  for  leave  to  issue 
execution  under  that  act,  whether  five  years  from  the 
rendition  of  the  judgment  have  elapsed  or  not.  At  least 
such  is  the  opinion  of  the  supreme  court  as  expressed  by 
Justice  James.^  He  there  held  that  the  death  of  the 
defendant,  having  suspended  the  plaintilF's  right  to  have 
execution  without  application  to  the  coiu-t  after  the  lapse 
of  one  year,  this  act  puts  the  plaintiff  in  a  position  to  ask 
the  court  to  declare  the  suspension  of  that  right  at  an  end, 
and  that  execution  might  issue.  He  further  held  that 
such  application  should  be  upon  affidavit  setting  forth  all 
the  facts,  together  with  the  surrogate's  peiTnission.  That 
on  presenting  such  papers  to  the  court  an  order  should  be 
made  for  all  persons  interested  in  the  estate  to  show  cause, 
at  special  term,  why  execution  on  such  judgment  should 
not  issue,  and  also  directing  the  manner,  and  on  whom, 
such  order  should  be  served.^ 

If  upon  any  motion  or  application  for  execution  questions 
of  fact  arise  as  to  the  rights  of  persons  not  parties  to  the 
record,  a  reference  may  be  made  under  the  provisions  of 
the  Code,*  in  which  the  rights  of  all  parties  interested  can 
be  ascertained  and  reported  upon. 

So  also  it  is  irregular  to  issue  an  execution  upon  a  judg- 
ment or  decree  which  is  i^rima  facie  no  longer  in  existence 
as  a  subsisting  debt  against  a  bankrupt  or  his  property, 
without  previously  applying  to  the  court  upon  notice  to 
the  bankrupt.^  Nor  can  an  execution  be  issued  upon  a 
judgment  in  rem  without  application  to  the  proper  tribunal 
for  authority  to  do  so,  unless  such  directions  are  contained 
in  the  judgment  itself.^ 

Its  form  and  requisites. 

An  execution  is  a  process  of  the  court  issued  in  the 
name  of  the  people,  tested  in  the  name  of  a  justice  of  the 


'  §  376.  "  Boyd   v.    Vanderkemp,    1    Barb.    Ch., 

»  Alden  v.  Clark,  11  How,,  209.  273;  Alcott  v.  Avenj,  Id.,  847. 

»  See  Code,  §  284;   11  How.,  214.  "  Chapman  v.  Ltnion,  11  How.,  235. 

*  §  271 ;  opinion  of  James,  J.,  in  Alden 
V.  Clark,  11  How.,  215. 

II.— 4. 


26  ADMINISTRATION  OF   CIVIL  JUSTICE. 

court  out  of  which  the  process  is  issued,  and  is  subscribed 
by  the  party  issuing  it  or  by  his  attorney.  Preliminary 
to  the  issuing  of  an  execution  a  judgment  must  be  en- 
tered, and  it  must  be  docketed  in  the  county  to  which  the 
execution  is  issued.^  It  has  been  supposed  that  an  execu- 
tion against  personal  property  might  be  issued  to  the 
sheriff  of  a  county  in  which  the  judgment  had  not  been 
docketed  ;^  but  the  better  and  surer  way  is,  to  docket  the 
judgment  in  each  county  to  which  it  is  proposed  to  issue 
an  execution.^  For  under  the  Code  the  execution  against 
the  property  of  the  judgment  debtor  may  be  issued  to  the 
sheriff  of  any  county  where  the  judgment  is  docketed.* 

A  judgment  originally  entered  by  a  justice  of  the  peace 
may  become  a  judgment  of  the  county  court  by  being 
docketed  in  the  office  of  the  clerk  of  the  county  where  the 
judgment  was  rendered;  and  from  the  time  of  the  docket- 
ing of  the  same,  it  becomes  a  judgment  of  the  county 
court,^  which  likewise  may  be  docketed  in  any  other  county 
of  the  state  on  the  filing  of  a  certified  transcript  of  such 
judgment  in  such  other  county.^  When  the  execution  is 
issued  upon  such  judgment,  it  should  be  issued  and  sub- 
scribed by  the  clerk  of  the  county. 

The  execution  may  be  issued  by  an  attorney  other  than 
the  one  by  whom  the  judgment  was  recovered,  and  will 
not  be  set  aside  for  irregularity  on  that  ground  ;  and  thus 
though  the  attorney  issuing  the  execution  had  not  been 
substituted  for  the  original  one.'' 

JParticuIar  form  of  the  execution. 

The  execution  must  be  directed  to  the  sheriff  of  the 
county,  or  to  the  coroner  where  the  sheriff  is  a  party  or 
interested  therein,  subscribed  by  the  party  issuing  it,  or 
his  attorney,  and  must  intelligibly  refer  to  the  judgment, 
stating  the  court,  the  county  where  the  judgment  roll  or 
transcript  is  filed,  the  names  of  the  parties,  the  amount  of 
the  judgment  if  it  be  money,  and  the  amount  actually  due 
thereon,  and  the  time  of  docketing  in  the  county  to  which 
the  execution  is  issued,  requiring  the  officer  substantially  : 
1.  Where  it  is  against  the  property  of  the  judgment  debtor, 


>  Code,  §  28Y.  *  Code,  §  281. 

=■  1  C.  R.,  123.  6  Code,  §  63. 

*  See   Sioutenburgh  v.    Vandenburgh,  7  ®  CboA;  v. -DJcH«5cm,  1  Duer,  679  [687]; 

How.,  229,  233;  and  De  Agreda  v.  citing  Graham's  Pr.,  356;  Code,  § 

Mantel,  1  Abb.,  130.  289. 


THE  EXECUTION.  27 

to  satisfy  the  judgment  out  of  the  personal  property  of 
such  debtor,  and  if  sufficient  personal  property  cannot  be 
found,  out  of  the  real  property  belonging  to  him  on  the 
day  when  the  judgment  was  docketed  in  the  county,  or  at 
any  time  thereafter ;  or,  2.  If  it  be  against  real  or  personal 
property  in  the  hands  of  personal  representatives,  hebs, 
devisees,  legatees,  tenants  of  real  property  or  trustees,  to 
satisfy  the  judgment  out  of  such  property;  or,  3.  If  it  be 
against  the  person  of  the  judgment  debtor,  to  arrest  such 
debtor  and  commit  him.  to  the  jail  of  the  county  until 
he  shall  pay  the  judgment  or  be  discharged  according  to 
law ;  or,  4.  If  it  be  for  the  delivery  of  the  possession  of  real 
or  personal  property,  to  deliver  the  possession  of  the  same, 
particularly  describing  it,  to  the  party  entitled  thereto, 
and  may  at  the  same  time  require  the  officer  to  satisfy  any 
costs,  damages  or  rents  and  profits  recovered  by  the  same 
judgment  out  of  the  personal  property  of  the  party  against 
whom  it  was  rendered,  and  the  value  of  the  property  for 
which  the  judgment  was  recovered,  to  be  specified  therein. 
If  a  delivery  thereof  cannot  be  had,  and  if  sufficient  per- 
sonal property  cannot  be  found,  then  out  of  the  real 
property  belonging  to  the  party  on  the  day  when  the 
judgment  was  docketed  or  at  any  time  thereafter;  and  in 
that  respect  the  execution  is  to  be  deemed  to  be  against 
property.^  If  the  party  desire  to  issue  an  execution  against 
an  executor,  &c.,  he  must  first  obtain  leave  of  the  surro- 
gate. For  the  statute  provides  that  "no  execution  shall 
issue  upon  a  judgment  against  an  executor  or  administra- 
tor until  an  account  of  his  administration  shall  have  been 
rendered  and  settled,  or  unless  on  an  order  of  the  surrogate 
who  appointed  him."'^ 

In  an  execution  against  executors,  the  directions  to  the 
sheriff  should  be  to  collect  the  judgment  out  of  the  per- 
sonal property  of  the  testator — naming  him — in  the  hands 
of  the  defendants  as  his  executors.  If  the  defendants  be 
merely  named  as  executors,  the  sheriff  might  levy  on  their 
individual  property  unless  the  directions  were  specific.^ 
The  Code  is  imperative  that  the  execution  shall  require 
the  officer  to  satisfy  the  judgment  out  of  the  property, 
which,  according  to  the  judgment,  is  liable  for  its  payment.* 


'  Code,  §  289.  *  10  How.,  217. 

"  2  II.  S.,  88,  §  .32;  2  N.  Y.  S.  at  L.,  90.     *  §  289,  subd.  2. 

§  32 ;  Mills  v.  Thursby,  2  Abb.,  432 

[437]. 


28  ADMINISTRATION  OF   CIVIL  JUSTICE. 

If,  at  the  time  of  issuing  the  execution,  the  defendant's 
accounts  Iiave  been  rendered  and  settled,  no  orders  of  the 
surrogate  granting  leave  to  issue  the  same  will  be  neces- 
sary ;"and  the  execution  in  such  case  will  issue  for  only 
the  sum  which  shall  appear  on  the  settlement  to  have 
been  a  just  proportion  of  the  assets  applicable  to  the 
judgment.^ 

The  order  of  the  surrogate  is  obtained  on  the  application 
of  the  creditor,  who  has  obtained  a  judgment  against  the 
executor  or  administrator,  for  an  order  against  such  execu- 
tor or  administrator,  to  show  cause  why  an  execution  on 
such  judgment  should  not  be  issued.^  On  such  application 
the  surrogate  issues  a  citation  requiring  the  executor,  &c., 
complained  of,  at  a  certain  time  therein  named,  to  appear 
and  account  before  him.  And  if  upon  such  accounting 
there  appear  to  be  assets  in  his  hands  applicable  to  the 
payment,  in  whole  or  in  part,  of  the  judgment  so  obtained, 
the  surrogate  must  make  the  order  that  execution  be 
issued  for  the  amount  so  applicable.^ 

"If  the  whole  sum  for  which  a  judgment  may  have  been 
obtained  shall  not  be  collected  on  the  execution  so  di- 
rected to  be  issued,  and  assets  shall  thereafter  come  into 
the  hands  of  such  executor  or  administrator,  the  surrogate 
shall  make  a  further  order  for  issuing  execution  upon  the 
application  of  the  creditor,  his  personal  representatives  or 
assignees,  and  shall  proceed  in  the  same  manner  from  time 
to  time  whenever  assets  shall  come  to  the  hands  of  the 
executor  or  administrators  until  such  judgment  be  satis- 
fied."* But  execution  is  not  to  issue  against  the  body, 
nor  against  the  proper  goods  and  chattels,  lands  and  tene- 
ments of  any  executor,  administrator,  heir,  devisee  or 
legatee,  except  in  cases  specially  provided  by  law.^ 

Where  the  judgment  is  against  the  testator  or  intestate 
who  has  since  died,  his  personal  representatives  may  be 
summoned  at  any  time  within  one  year  after  their  appoint- 
ment, to  show  cause  why  the  judgment  should  not  be 
enforced  against  the  estate  of  the  judgment  debtor  in  their 
hands  respectively.^    Such  summons  must  be  subscribed 


»  2  R.  S.,  88,  §  32;  2  N.  Y.  S.  at  L.,  120,  §  20;  see  also  further  provi- 

so, §  32.  sions  in  S3  21,  22,  &c. 

«  2  R.  S..- 116,  §  19 ;  2  N.  T.  S.  at  L.,     *  Idem,  §  22. 

120,  §  19.  6  2  R.  g":  363   §  3;  2  N.  Y.  S.  at  L., 

2  R.S.,  116,  §20;  2  N.  Y.  S.  at  L.,  376. 

*  Code,  §  376. 


THE  EXECUTIOIT.  29 

by  the  judgment  creditor,  his  representative  or  attorney, 
and  must  describe  the  judgment  and  require  the  persons 
summoned  to  show  cause  within  twenty  days  after  the 
service  thereof,  and  must  be  served  in  the  same  manner 
as  the  original  summons.^  The  summons  nnist  be  accom- 
panied by  the  affidavit  of  the  i)erson  subscribing  it,  stating 
that  the  judgment  has  not  been  satisfied,to  his  linowledge 
or  information  and  belief,  and  specify  the  amount  due 
thereon.^ 

The  party  summoned  may  appear  and  answer  and  defend 
by  setting  up  any  new  defense  which  may  have  arisen 
subsequent  to  the  judgment;  or  he  may  deny  the  judg- 
ment, and,  in  certain  cases,^  he  may  make  the  same  defense 
as  he  might  have  made  to  the  original  action,  except 
the  statute  of  limitations.^  The  subsequent  pleading  and 
proceedings  are  the  same  as  in  action ;  the  issue  is  to  be 
tried  and  judgment  is  to  be  given  in  the  same  manner, 
Avhich  judgment  is  enforced  by  execution  in  the  same  man- 
ner, ami,  if  necessary,  the  application  of  the  property 
charged  to  the  i)ayment  of  the  judgment,  may  be  compelled 
by  attachment.*  The  answers  and  replies  in  these  x>ro- 
ceedings  are  to  be  verified.^ 

These  are  the  steps  necessary  to  be  taken  before  an 
execution  can  be  issued  to  enforce  the  collection  of  a 
judgment  against  the  estate  of  one  who  has  died  after  the 
rendition  of  judgment  against  him;  and  the  proceeding- 
is  very  analagous  to  the  former  proceeding  by  scire  facias. 

To  tchom  directed. 

The  execution  must  be  directed  to  the  sheriff  of  the 
county  into  which  it  is  issued;  and  if  more  than  one  exe- 
cution is  issued  at  the  same  time,  each  must  be  directed 
to  the  sheriff*  of  the  particular  county  where  it  is  to  be 
executed.^  If  the  sheriff  in  any  county  to  which  an 
execution  is  issued  be  a  party,  or  be  interested  therein,  the 
execution  should  be  directed  to  the  coroner  of  the  county; 
and  if  there  are  several  coroners  in  the  same  county,  then 
to  the  coroner  of  the  particular  district  in  which  it  is  to 
be  executed.'''  And  in  case  both  the  sheriff'  and  coroner 
be  interested  or  parties,  then  it  will  be  necessary  to  obtain 


»  Code,  §  377.  ♦  Code,  §  380. 

'Code,  §378.  »  Code,  §  381. 

»  Code,  §  379.  •  Code,  g  287. 


30  ADMmiSTRATIOK  OF  CIVIL  JUSTICE. 

au  appointment  by  the  court  or  judge,  of  some  disinterested 
person  therein,  by  special  order,  who  shall  be  authorized 
to  execute  the  same.^ 

The  statute  provides^  that  in  all  cases  where  a  judgment 
shall  be  obtained  in  any  court  against  the  sheriff  of  any 
county,  instead  of  directing  the  execution  thereon  to  the 
coroner  of  the  county,  it  may  be  directed  and  delivered  to 
any  person  except  the  party  in  interest  in  the  suit,  who 
shall  be  designated  by  the  court  in  term  time  by  an  order 
to  be  entered  in  the  minutes,  or  by  a  judge  thereof  in 
vacation,  by  an  order  to  be  indorsed  on  such  execution ; 
and  that  the  person  so  designated  and  receiving  such  exe- 
cution to  execute  the  same,  shall,  in  respect  thereto,  be 
deemed  a  coroner  of  the  county,  &c.^ 

The  Code  provides  that  where  the  execution  requires 
the  delivery  of  real  or  personal  property,  it  must  be  issued 
to  the  sheriff  of  the  county  where  the  property,  or  some 
part  thereof,  is  situated,^  and  that  it  must  be  directed  to 
the  coroner  where  the  sheriff  is  a  party  or  interested  ;*  so 
that  perhaps  it  may  be  questionable  whether,  under  the 
Code,  the  practice  under  the  statute  of  procuring  the 
appointment  of  a  disinterested  person  to  execute  an  exe- 
cution in  such  case  against  the  sheriff  is  not  superseded, 
unless  by  the  term  coroner,  the  Code  is  supposed  to  include 
persons  so  appointed  to  execute  the  process  of  the  court. 

Mcecution  against  attached  property. 

Where  an  attachment  against  a  foreign  corporation  is 
levied,  and  an  execution  be  directed  to  issue  against  such 
property,  it  must  be  directed  to  the  sheriff  who  levied  the 
attachment,  though  he  be  out  of  office.^  It  is  apparent 
from  the  several  provisions  on  this  subject^  that  the  pro- 
perty attached,  both  real  and  personal,  is  to  be  held  under 
the  attachment  by  the  oflBcer  from  the  time  of  the  seizure 
imtil  the  rendition  of  the  judgment,  in  order  that  it  maj'" 
be  applied  in  satisfaction  of  the  debt ;  and  that  the  right 
thus  to  apply  relates  back  to  the  seizure.  The  proceeding 
to  judgment  is  a  mode  of  liquidating  the  demand  of  the 
attaching  creditor  with  a  view  to  such  application,  instead 


*  2  R.  S.,  364,  §§  11,  12;  2  X.  T.  S.  at  '  American  Exchange  Bank  v.   Morris 

L.,  377.  Canal  Co.,  6  Hill,  362. 

^  Idem,  §  12.  »  2  R.  S.,  460,  §§  21,  22,  15;  2  N.  Y. 

*  Code,  §  287.  S.  at  L.,  480. 

*  §  289. 


THE  EXECUTION.  31 

of  appointing  trustees  for  that  purpose,  as  in  tlie  case  of 
absent  or  absconding  debtors.  Tlie  sheriff  making  the 
seizure  is  the  one  who  should  complete  the  proceedings. 
The  property  is  in  his  custody,  and  he  is  to  safely  keep  it 
to  answer  any  judgment  which  may  be  obtained  in  the 
suit.^ 

Directio'ns  to  he  indorsed  thereon. 

Attention  should  be  given  to  making  the  proper  indorse- 
ments upon  the  execution.  Ordinarily  it  is  suflScient  to 
indorse  on  the  back  thereof  the  title  of  the  cause,  and  the 
name  and  address  of  the  attorney  issuing  the  same,  or 
that  of  the  party  acting  in  person,  directing  the  sheriff  to 
levy  the  same,  stating  the  amount  called  for,  together 
with  interest,  and  also  the  amount  of  his  fees  and  expenses. 

K  the  execution  be  against  executors  or  administrators 
as  such,  then  a  special  direction  must  be  indorsed,  directing 
the  sheriff  that  he  collect  the  judgment  out  of  the  personal 
property  of  the  testator  or  intestate — naming  him — in  the 
hands  of  the  defendants  as  his  executors.^ 

So  where  the  execution  is  issued  on  a  decree  against 
heirs  and  devisees  among  whom  are  infants,  the  attorney 
must  indorse  thereon  the  names  of  the  defendants  who 
are  infants,  and  direct  the  sheriff  not  to  execute  the  same 
against  such  infants  until  the  expiration  of  one  year  after 
the  rendition  of  such  decree.^ 

In  an  action  on  a  bond  with  a  penalty,  though  the  judg- 
ment is  for  the  penalty,  the  execution  is  only  for  damages 
and  costs.*  Thus  in  an  action  on  the  penal  bond  to  the 
sheriff  for  the  jail  liberties,  though  the  judgment  is  for  the 
whole  penalty,  execution  cannot  issue  for  more  than  the 
original  debt  with  interest  and  costs.^  So  also  in  an  action 
on  a  money  bond  conditioned  for  the  payment  of  money 
by  installments,  judgment  should  be  entered  for  the  full 
penalty  of  the  bond  and  for  costs  of  suit,  and  execution 
be  issued  with  directions  indorsed  to  levy  the  installment 
due ;  and  thus  on,  from  time  to  time,  as  the  installments 
become  due.^ 

'  6  Hill,  367,  Per  Nelson.  J. ;  see  also  McKay  v.  Harrovjer,  27  Barb.,  463 ;  Code, 
eg  232,  237;  2  R.  S.,  438,  §  69,  subd.  5;  2  N.  Y.  S.  at  L.,  457. 
'""  Mills  V.   Thursby,  2  Abb.,  432;    also     =  2  R.  S.,  455,  §§  54,  55  ;  2  N.  T.  S.  at 
10  How.,  217.  L.,  475;  see  also  2  R.  S.,  368,  &c. 

*  1  R.  L.,  349;  Hodges  v.  Sufelt,  2  Johns.  Cases,  406;  and  Claverly  v.  Nichols,  4 
Johns.,  189;  also  6  Johns.,  2S3:  12  Johns.,  350. 

'  Sprague  v.  Seymour,  15  Johns.,  474. 

•  Harmon  v.  Hedrick,  3  Barb.,  192;  Wood  v.  Wood,  3  Wend.,  454;  and  also  17 
Wend.,  331. 


32  ADMimSTRATION  OF  CIVIL  JUSTICE. 

So  also  where  a  judgment  by  confession  has  been  en- 
tered without  action  for  money  to  become  due,  or  to  secure 
a  person  against  contingent  liability  on  behalf  of  the 
defendant,  according  to  the  provisions  of  the  Oode,^  and 
the  debt  for  which  the  judgment  is  recovered  is  not  all 
due,  or  is  payable  in  installments,  and  the  installments 
are  not  all  due,  the  execution  on  such  judgment  is  issued 
In  the  usual  form,  but  a  direction  to  the  sheriif  must  be 
indorsed  thereon  by  the  attorney  or  person  issuing  the 
same,  to  collect  the  amount  due  on  such  judgment,  with 
interest  and  costs,  which  amount  (interest  and  costs)  must 
be  stated,^  and  the  amount  is  to  be  ascertained  by  the 
statement  made  and  verified  by  the  defendant  at  the  time 
of  the  entry  of  such  judgment.^ 

Whenever  a  judgment  has  been  recovered  against  a 
sheriff  and  his  sureties,  a  direction  must  be  indorsed  on 
the  execution  issued  thereon  by  the  attorney  issuing  the 
same,  to  levy  the  amount  of  such  execution,  in  the  first 
place,  of  the  property  of  such  sheriff",  and  if  sufficient 
property  of  such  sheriff"  cannot  be  found  to  satisfy  such 
execution,  then  to  levy  the  deficiency  of  the  property  of 
the  sureties.'* 

So  when  the  plaintiff"  has  recovered  judgment  for  the 
penal  sum  of  any  bond  other  than  for  the  i^ayment  of 
money,  and  the  jury  have  returned  their  verdict  for 
damages  according  to  the  provisions  of  the  statute  in  such 
cases  made  and  provided,^  the  execution  upon  such  judg- 
ment must  be  upon  the  judgment  in  the  usual  form  in 
actions  of  debt;  but  the  attorney  issuing  the  same  must 
indorse  thereon  a  direction  to  the  sheriff"  to  collect  the 
amount  of  damages  so  assessed,  which  amount  must  be 
stated,  with  the  interest  thereon,  from  the  time  of  the 
assessment,  and  the  costs  of  suit.^ 

So  also  where  the  judgment  shall  be  recovered  for  a 
debt  secured  by  mortgage  of  real  estate,  or  for  any  part 
of  such  debt,  and  execution  against  the  property  of  the 
mortgagor  shall  be  issued  thereon,  the  plaintiff's  attorney 
must  indorse  thereon  a  brief  description  of  the  premises 


'  ^§  382.  383.  '  Code,  §  383. 

-  Code,  §  384. 

*  2  R.  S.,  478,  §  15;  2  N.  Y  S.  at  L.,  500  g  15. 

*  2  R.  S.,  379,  §  10;  2  N.  Y.  S.  at  L.,    •  Idem. 

393. 


THE  EXECUTION.  33 

mortgaged,  referring  to  the  page  and  book  of  tbe  record 
in  which  the  mortgage  is  recorded,  with  directions  to  the 
sheritt'  not  to  levy  snch  execution  upon  the  said  in'emises 
or  any  part  thereof.^ 

When  the  execution  is  issued  upon  a  judgment  against 
two  joint  debtors,  in  which,  however,  only  one  of  them 
has  been  served  with  process,  the  execution  must  be,  in 
form,  against  both  defendants;  but  specific  instructions 
must  be  indorsed  thereon  not  to  levy  the  execution  ujjon 
the  sole  property  of  the  part}-  not  served.^ 

When  it  is  required  to  issue  an  execution  against  a 
married  woman,  the  direction  to  the  officer  must  be  to 
levy  and  collect  tlie  amount  of  the  judgment  from  her 
separate  propert}'  and  not  otherwise.^ 

Indorsement  hy  the  sheriff. 

The  execution  is  made  returnable  within  sixty  days  after 
its  receipt  by  the  officer,  to  the  clerk  with  whom  the  record 
of  judgment  is  liled.^  It  is  made  the  duty  of  the  sheriff, 
on  the  receipt  of  the  execution,  to  indorse  thereon  the 
year,  month,  day  and  hour  of  the  day  on  which  he  re- 
ceived the  same,^  and,  if  required  by  the  party  delivering 
the  same,  and  on  i)ayment  of  his  legal  fees,  he  must  give 
to  such  i)erson  a  written  minute  signed  by  himself,  si)eci- 
fyingthe  names  of  tlie  parties  in  such  process,  the  general 
nature  thereof,  and  the  day  of  receiving  the  same." 

The  judgment  on  which  the  execution  is  issued  must  be 
docketed  in  the  county  where  it  is  to  be  executed  prior  to 
the  indorsement  thereon  by  the  sheriff,  or  the  execution  will 
be  irregular.'  But  the  party  delivering  the  execution  to 
the  sheriff  maj'  instruct  him  to  indorse  the  execution  as 
at  a  time  subsequent  to  the  docketing  of  the  judgment; 
and  if  his  instructions  are  obeyed,  the  execution  will  bo 
regular.'*  It  is  usual,  on  issuing  an  execution  to  a  distant 
connty  where  the  judgment  has  not  been  docketed,  to 
inclose  to  the  sheriff  a  transcript  of  the  judgment,  with 


'  2  R.  S..  ?SA,  53  .Tl,  :!2;  2  N.  Y.  S.     '  2  R.  S..  440,  §  75;  2  N.  Y.  S.  ai  L., 

at  L..  382.  458. 

•  2  R.  S.,  377,  §5  3,  4;  2  N.  Y.  S.  at     '  Code.  §  287;  see  20  Johns.,  307;  3 

L.,  392.  Cow.,  30. 

*  Code,  g  287.  •  See  Cluiit  v.  Cluie,  4  Denio,  241 :  WaU 

*  Code,  §  290.  ttrs  v.  Sykts,  11  Wend.,  566. 

•  2  R.  S'.,  361,  §  10 ;  2  N.  Y.  S.  at  L., 

377. 

II.— 5. 


34  ADMINISTEATION   OF   CIVIL  JUSTICE. 

the  execution,  for  the  purpose  of  havmg  tlie  judgment 
docketed,  instructing  the  sheriff  to  tile  the  transcript  with 
the  county  clerk  in  his  office,  prior  to  indorsing  the  execu- 
tion, and  to  charge  payment  in  the  account  of  his  fees,  &c. 

The  effect  of  such  lodgment. 
As  soon  as  such  execution  is  properly  lodged  with  the 
sheriff,  the  goods  and  chattels  of  the  defendant  in  execu- 
tion within  the  jurisdiction  of  the  officer  with  whom  it  is 
lodged,  become  bound  to  answer  its  requirements;  but 
they  are  bound  only  from  the  time  of  the  delivery  of  the 
same  for  execution.^  Where  several  executions,  issued  out 
of  a  court  of  record  against  the  same  defendant,  come  to 
the  hands  of  the  sheriff  to  be  executed,  they  have  prefer- 
ence in  the  order  of  their  delivery  without  regard  to  the 
particular  one  levied.^  But  any  execution  or  attachment 
issued  out  of  any  court  not  of  record,  if  actually  levied, 
has  precedence  over  one  of  a  court  of  record  not  pre- 
viously levied.^  The  lien  upon  real  estate  commences  with 
the  docketing  of  the  judgment  in  the  county  where  the 
same  is  situated,^  and  does  not  depend  upon  delivering  an 
execution  to  the  sheriff. 

Upon  what  property  the  execution  may  he  levied. 

In  general,  the  execution  may  be  levied  upon  all  per- 
sonal goods  and  chattels  of  the  judgment  debtor  not 
specially  exempted  hj  law.  Wheat  growing  on  the  ground 
is  a  chattel,  and  as  such,  is  subject  to  being  taken  and 
sold.^  So  also  the  growing  crops  on  leased  land,  being 
chattels,  are  liable  to  be  taken  and  sold  on  an  execution 
against  the  lessee."  Things  annexed  to  the  freehold,  or  to 
any  building  for  the  purpose  of  trade  or  manufacture,  and 
not  fixed  into  the  wall  of  a  house  so  as  to  be  essential  to 
its  support,  are  also  deemed  chattels."  Thus  looms  placed 
on  the  floor  of  a  woolen  factory  and  fastened  to  the  floor 
by  means  of  screws,  for  the  purpose  of  keeping  them 
steady,  are  chattels.^  Property  which,  were  it  not  for  an 
agreement  in  respect  thereto,  would  become  realty,  may 


'  2  R.  S.,  365,  §  13;  2  K  T.  S.  at  L.,  "  As  chattels:  Shepard  v.  Philbrick,   2 
379,  §§  13,  14,  &c.  Denio,     174;     Whipple   v.   Foot,    2 

"  Idem,  §  14;  see  Peck  v.  Tiffany,  2  K  Johns.,  418. 

Y..  457.  6  Stewart  v.  Doughty,  9  Johns.,  108. 

^  Idem,  §  16.  '  Murdoch  v.  Gifford,  18  N.  Y.,  28. 

*  Code,  g  282.  » Idem. 


THE   EXECUTIOlf.  35 

preserve  the  character  of  personalty  according^  to  its  essen- 
tial nature,  and  the  mode  in  which  it  is  affixed  to  the 
realty;  thus,  whether  it  can  be  removed  without  serious 
damage  to  the  freehold,  or  without  substantially  destroying 
its  own  quality  and  value.^ 

Money,  as  bank  bills,  may  be  taken  and  sold  on  execu- 
tion.^ But  where  the  sheriff  receives  money,  in  coin,  in 
I)ayment  of  an  execution  in  his  hands  in  favor  of  the 
Ijlaintitf,  and  at  the  same  time  has  an  execution  in  his 
hands  against  the  iilaintiff,  and  upon  which  he  is  unable 
to  find  property  to  satisfy,  except  the  coin  in  his  hands, 
he  cannot  levy  on  such  coin  and  so  apply  it  to  the  satis- 
faction of  the  execution  against  the  j)laintiif.^  The  money 
in  the  hands  of  the  officer,  or  in  the  hands  of  the  court, 
is  not  the  money  of  the  party  for  whom  it  is  collected  or 
paid  until  paid  over.^  But  surplus  moneys  arising  froni 
the  sale  of  defendant's  goods,  and  remaining  in  the  hands 
of  an  officer  after  satisfying  an  execution  against  the  de- 
fendant, belongs  to  the  defendant,  and  are  subject  to  levy 
as  such.^ 

The  interest  of  the  mortgagor  of  chattels  in  the  chattels 
mortgaged,  while  he  is  rightfully  in  possession  of  the 
same,  may  be  levied  upon  and  sold.*^  The  principle  is, 
that  the  mortgagor  of  a  chattel  having  a  right  to  the 
possession  of  the  same,  has  a  leviable  interest,  and  the 
purchaser  of  such  interest  acquires  his  right  to  redeemJ 
But  where  the  mortgagee  has  a  right  to  the  immediate 
possession,  it  is  otherwise.'' 

The  interest  of  the  pledgor  in  goods  pledged  may  also 
be  taken  and  sold,'^  and  if  not  redeemed  or  redeemable 
immediatel}',  they  should  be  delivered  to  the  pledgee,  to 
whom  the  purchaser  must  look  for  them.^  So  also  the 
interest  of  bailees  or  pledgees  for  goods  which  they  hold 
for  security,  maybe  taken  and  sold;  and  the  purchaser 
acquires  their  right  and  interest  therein.^" 

The  movable  property  of  a  railroad  company  as  the 


'  Fordv.  Cobb,  2  K  Y.,  344.  id.,   202;  Asseler  v.    Goulet,   22   N. 

'Handy  V.  Dobbin,   12  John."?.,  220;  2  Y.,  225. 

R.  S.,  366,  §  18.  '  Bank  of  Lansingburgh   v.   Gary,    11 

'  Miificott  V.  Woolworth,  14  How.,  477.  Barb.,  542. 

*  Dubois  V.  Dv.bois,  6  Cow.,  404 ;  see  '  6  Duer,  83. 

aLso  Betts  v.  Iloyt,  19  Barb.,  412.  "  Bakewell  v.  Ellsworth,  6  Hill,  484;  and 

'  Wheeler  w.  Smith.  11  Barb.,  345.  see  also  10  Wend.,   318;  see  also 

"Midi  V.    Carnly,   11    N.  Y.,  501;    17  Steif  v.  Hart,  1  N.  Y.,  20. 

"  9  How.,  569. 


36  ADMINISTRATION   OP   CIVIL   JUSTICE. 

rolling-  stock,  and  general  implements  thereof,  may  be 
taken  in  execution  as  chattels.' 

In  case  of  joint  debtors  their  joint  or  several  pro])erty 
may  be  levied  upon ;  and  in  such  case  the  court  will  not 
look  into  the  state  of  the  accounts  between  them.^  So 
also  the  interest  of  one  of  the  i)artners  in  partnership 
pro[)erty  may  be  sold  subject  to  an  accounting  between 
tlie  partners  on  a  dissolution  of  the  lirm.^  But  in  case  of 
judgment  against  joint  debtors,  the  ])ro])erty  of  a  defend- 
ant not  served  with  a  process,  we  have  alreadj^  seen,  must 
not  only  not  be  levied  upon,  but  the  sheriff  must  be  in- 
structed not  to  levy  on  the  sanie.^ 

But  mere  choses  in  action  are  not  thus  subject  to  levy 
and  sale;  as,  bank  or  library  shares,^  a  promissory  note," 
&c.,  and  the  Code  has  not  changed  tlie  law  in  this  respectJ 
So  a  mortgagor  of  chattels  who  has  no  right  of  possessiou 
for  a  delinite  period,  and  has  merely  a  naked  right  of 
redemption,  has  no  leviable  interest.**  So  a  fraudulent 
purchaser  of  goods,  as  against  the  vendor,  has  no  title.' 

Pro]oertij  exempted  from  execution. 

The  law  has  also  exem])ted  certain  property  from  levy 
and  sale  on  execution,  as  sinnning- wheels,  looms  and 
stoves,  and  a  sew  ing  machine.'"  Likewise  books,  as  family 
bible,  pictures,  school  books,  and  family  library  not  ex- 
ceeding $50  in  value."  Under  the  latter  subdivision,  it 
lias  been  held  that  the  professional  books  necessary  to  a 
jirofessional  man  who  supports  his  family  by  the  imictice 
of  his  profession  are,  to  a  reasonable  extent,  exempt,  as  a 
part  of  his  family  library.'^ 

The  stjitute  also  exempts  a  seat  or  pew  occupied  by  such 
person  or  family  in  any  house  or  place  of  worship.'"  Also 
all  sheep  to  the  number  of  ten,  with  their  fleeces,  and  the 
yarn  or  cloth  manufactured  from  the  same;  one  cow, 
two  swine,  the  necessary  food  for  them;  all  necessary  pork, 


'  Beardslij  v.   O.itario  Bank.  31   Bnrb.,  "  MatUson  v.  Bancu-s,  1  N.  Y.,  295. 

G19;  ixnd  Sf'iveiis  Y.  Biifrah  &  K  Y.  °  Root  v.  French.,    13   Wend.,    570;    3 
Citij  R.  R.  Co.,  Idem.,  590.  Johns.,  238. 

*  Godfrey  v.  Gibbons,  22  Wend..  5G9.  "  2    R.  S.,    367,    §    22,    subtl.     1  ;    aa 
'  11  How.,  46;  also  34  Barb.,  553.  amended  L.  1860,  eh.  152;  2  N.  Y. 

*  Ante.  pp.  4  and  33.  S.  at  L..  380. 

'  Benton  v.  Livingston,  9  Jolins..  96.  "  Idem,  §  22,  snbd.   2. 

*  Lir/alh  V.  Lord,  1  Cow.,  240 :  9  Johns.,  '"  See  3  Abb.,  460. 

ioo.  ■  "Idem,  §  22,  subd.  3. 

'  Ranson  v.  M«e»-,  3  Sandf.,  692. 


I 


THE   EXECUTION.  37 

beef,  fisb,  flour  and  vegetables  actnally  provided  for  family 
use;  and  necessary  fuel  for  the  use  of  the  family  for  sixty 
days.'  Under  the  same  provision  of  the  statute  in  the 
justice's  act,^  it  is  liehl  that  a  householder  not  owning  any 
sheep  may  hold  to  the  number  of  ten  tleeces  exempt  from 
execution.'  The  necessary  vegetables  exempted  may  be 
in  any  stage  of  culture,  or  they  may  be  in  store, ^  and  the 
restriction  to  sixty  days  supply  applies  only  to  the  fuel. 
The  food  for  cattle  exemi)ted  must  be  determined  by  the 
season;  in  the  fall,  it  means  enough  to  last  through  the 
winter,  &c.'^  So  likewise  that  part  of  the  statute  exempting 
necessary  pork,  beef,  hsh,  «&c.,  provided  for  family  use, 
was  intended  to  protect  such  a  quantity  of  the  specitied 
articles  as  would  be  necessary  for  the  family  until  the  next 
annual  period  for  laying  up  such  provisions.*^ 

The  statute  also  exenii)ts  all  necessary  wearing  apparel, 
beds,  bedsteads  and  bedding  for  the  householder  and 
family,  arms  and  accoutrements  required  by  law  to  bo 
kei)t  by  such  person,  necessary  cooking  utensils,  one  table, 
six  chairs,  six  knives  and  forks,  six  plates,  six  teacu])S  and 
saucers,  one  sugar  dish,  one  milk  pot,  one  tea  pot  and 
six  spoons,  one  crane  and  its  appendages,  one  pair  of 
andii'ons  and  a  shovel  and  tongs.'  Under  this  i:)rovision 
it  is  held  that  the  necessary  wearing  apparel  for  the  family, 
to  be  exempted,  must  be  owned  by  the  householder  or  head 
of  the  family.  That  the  clothing  of  one  living  in  the 
family  merely  is  not  exempt." 

The  tools  and  imi)lements  of  any  mechanic  necessary 
for  the  carrying  on  of  his  trade,  to  the  amount  of  twenty- 
five  dollars,  are  also  exempted  from  such  sale.''  So  also 
the  statute  further  provides'"  that  in  additi(ni  to  the  fore- 
going necessary  household  furniture  and  working  tools, 
and  team  owned  by  any  ])erson  being  a  househofder,  or 
having  a  family  for  which  he  provides,  not  exceeding  $150 
(now  .$250)  in  value,  are  exempt.  And  by  the  statute  of 
1858,"  ii  is  provided  that  these  provisions  shall  not  apply 


'  2  R.  S..  3C7,  §  22,  subd.  4 ;  2  N.  Y.  "  Idem.,  Por  Broxson,  J. 

S.  at  L,  380.  '  2  R.  S.,  307,  ij  22.  subd.  5 ;  2  N.  Y. 
«  2  R.  S.,  255,  §  169.  subd.  4.  S.  at  L.,  380. 

*  Hall  V.  Penny,']l  Wend.,  44;  Brackdt  "  Bowne  v.  Will,  19  Wend..  475. 

V.   Watkim,  21  Wend.,  C8.  "  2   R.  S.,  3G7,  §  22,  subd.  0;   2   X.  Y. 

*  Carpenter  v.    ILivriajtoii,    25   Wend.,  S.  at  L ,  380. 

370.  "  Ii   1842,  eh.  15G. 

''  Fund  V.  mghlij,  Hill  &  D.  Sup.,  87,  "  Ch.    107,  ^  1;  amended  L.  1850,  cli. 
Tcr  Bko.nSu.v,  J.  134,  p.  343. 


38  ADMLNISTKATION   OF   CIVIL  JUSTICE. 

to  judgments  for  claims  accruing  for  ser\dces  performed 
in  a  family  as  a  domestic.^ 

Necessary  hoiishold furniture,  working  tools  and  team. 

The  question  whether  a  team  is  necessary  or  not  cannot 
be  determined  by  the  question  whether  the  debtor  has 
other  means  to  pay  the  debt.-  The  law  is  intended  for  the 
benefit  of  all  persons,  no  matter  what  their  calling  or 
profession,  whose  team  is  necessary  to  the  successful  or 
convenient  prosecution  of  their  business.  Thus,  the  horse 
of  a  country  physician,  whose  patients  reside  at  too  great  a 
distance  to  visit  them  on  foot,  is  a  "necessary-  team."^  So 
a  carman's  horse,  with  his  cart  and  harness,  constitute  his 
team  within  the  exemption.^  So  a  single  horse  used  by  a 
householder  having  a  family  for  which  he  provides,  is  a 
team.*  Also  the  necessary  food  for  such  team  for  the 
period  of  ninety  days,  is  exempted.^ 

The  surgical  instruments  of  a  practicing  physician  are 
his  working  tools,  and  as  such,  are  exempted.^ 

The  exemption  under  the  law  of  1842"  cannot  be  set  up 
where  the  execution  is  issued  upon  a  judgment  founded 
on  a  demand  for  the  purchase-money  of  such  furniture, 
tools  or  team,  or  the  food  for  such  team.  Such  exemptions 
as  are  allowed  by  that  law  are  not  available  against  exe- 
cutions issued  to  collect  the  purchase-money ;  but  property 
exempted  by  preexisting  statutes  cannot  be  levied  upon 
for  the  purchase-money  of  other  exempt  property.*^  But 
any  article  exempted  by  the  act  of  1842  may  be  levied 
upon  to  satisfy  a  judgment  recovered  for  the  purchase- 
money  of  that  or  any  other  article  exempted  either  by  that 
act  or  by  the  Eevised  Statutes;  but  articles  exempted  by 
the  Eevised  Statutes  cannot  be  levied  on  to  satisfj^  a  judg- 
ment recovered  for  the  purchase  price  of  the  article  itself.^ 

Under  the  act  of  1842,  in  order  to  make  the  provision 
that  the  execution  should  be  for  the  purchase-money  of 
the  article  exempted,  apj)licable,  it  will  be  sufficient  if  it 
be  for  the  purchase-money  of  some  of  the  exempted  pro- 
perty ;  and  it  need  not  be  for  the  identical  property  levied 

'  Ch.  107  §  1 ;    amended  L.   1859,   ch.  ••  Lockioood  v.  Yoimglove,  27  Barb.,  505. 

134  p.  343.  ^  L.  1859,  eh.  134. 

»  Wceeler  y.   Cropsey,  5  How.,  283;  8  ^  RoUmoiiY.  Case,  3  Abb.,  466. 

Id-,  75.  '  Amended  1859.  eh.  134. 

*  Hutchinson  V.  Chamberlain,   11   N.  Y.  '  Cole  v.  Stevens,  9  Barb.,  677;  6  How., 

L.  0.,  248;  see  also  8  How.,  75 ;  1  414;  see  also  10  Barb.,  91. 

Duer,  606.  »  Coz  v.  Stafford,  14  How.,  519. 


THE   EXECUTION.  39 

on.  But  a  judgment  for  taking  and  converting  plaintiff's 
property,  witliout  his  consent,  is  not  a  judgment  for  the 
purchase-money.^  The  "purchase-money"  intended  is  the 
original  demand,  &c.^ 

Real  property  exempted  from  levy. 

1.  A  seat  or  pew  in  a  place  of  worship  is  exempted.^ 

2.  Burying  grounds.  Lands  set  apart,  and  a  portion  of 
which  has  been  actually  used  for  a  family  or  private 
burying  ground,  are  not  subject  to  levy  and  sale.  But 
this  exemption  extends  only  to  one-fourth  of  an  acre  of 
land,  and  will  include  no  other  buildings  or  erections 
thereon  than  a  vault  or  other  place  of  deposit  for  the  dead.* 

3.  Under  the  Homestead  Exemption  Act,  a  lot  and 
buildings  thereon  occupied  as  a  residence  and  owned  by 
the  debtor,  he  being  a  householder  and  having  a  family, 
to  the  value  of  one  thousand  dollars,  may  be  exempt  by 
law  from  sale  on  execution  for  debts  contracted  after  the 
passage  of  said  act.^  And  such  exemption,  when  secured 
by  complying  with  the  provisions  of  that  act,  continues 
after  the  death  of  the  householder  for  the  benefit  of  the 
widow  and  family,  while  some  of  them  occupy  it  during 
the  life  of  the  widow  and  until  the  youngest  child  becomes 
twenty-one  years  of  age.^  But  a  judgment  in  a  case  where 
the  cause  of  action  arose  out  of  a  tort,  is  not  a  debt  con- 
tracted within  the  meaning  of  the  act.^ 

Who  may  claim  the  privilege. 

The  right  to  the  statutory  exemption  of  goods  from  sale 
on  execution  is  strictly  a  personal  right  and  will  not  avail 
another;  thus,  a  mere  bailee  of  goods  exempt  from  execu- 
tion cannot  maintain  an  action  for  the  taking  of  them  on 
execution.  ]S"one  but  the  actual  owner  has  a  right  to 
object.' 

The  word  "householder"  in  the  statute"  meaus  the  head, 
master  or  person  who  has  charge  of,  and  provides  for,  a 
family ;  but  it  does  not  apply  to  the  subordinate  members 


*  15  Barb.,  568.  necessary  to  secure  the  exemption, 
»  10  Barb.,  91.  see  L.  ISfjO,  ch.  260,  §  2. 

»  2  R.  S.,  367,  §  22,  subd.  .3 ;  2  N.  Y.  '  See  Cook  v.  Newman,   8  How.,  523 ; 

S.  at  L..  380.  see  Id.,  527. 

*  L.   1846,  ch.  85,  p.  91;  see  the  act  ^  Eark  v.  Gamp,  16  Wend.,  562;  Smith 

requiring  the  recording  of  notice  to  v.   Uill,   22  Barb.,   656  ;  Mickles  v. 

secure  the  exemption.  Idem.  Toushy,  1  Cow.,  114. 

*  April  10,  1850;  L.  1850,  cli.  260,  took  '  2  R.  S.,  367,  §  22. 

effect  Jan.    1,    1851:    as  to  what  is 


40  ADMINISTRATION   OF   CIVIL   JUSTICE. 

or  iumates  of  the  liousehold.'  The  term  is  to  be  construed 
as  cxteiulin^c:  to  every  family  so  long  as  they  remain  to- 
gether as  such,  even  though  they  may  be  houseless;  as 
Avhere  the  father  or  head  of  the  family  had  left  the  state, 
leaving  the  wife  and  children  living  together,  and  they 
were  changing  their  residence  when  the  levy  was  made.* 
So  a  woman  keeping  a  house  of  ill-fame  is  a  householder 
within  the  meaning  of  the  exemption  law.^  So  one  having, 
and  providing  for,  a  household,  although  storing  his  goods 
temporarily,  is  a  householder.*  So  a  man  and  his  daughter 
living  together,  the  wife  and  mother  being  dead.^  So  also 
one  having  a  house  and  keeping  boarders.*^  So  one  having 
children  which  he  maintains,  though  temporarily  absent; 
to  be  educated,"  has  a  tamily  within  the  act  of  1842, 

It  has  been  held  that  the  exemption  act  of  1842  extends 
to  judgments  and  executions  on  debts  contracted  prior  to 
its  passage,  and  is  constitutional;"  that  being  positive  they 
cannot  be  waived,  although  there  be  an  express  stix)ulatioii 
to  that  effect  in  the  original  contract.^ 

The  person  who  claims  the  exemption  must  show  him- 
self entitled  thereto  by  establishiug  affirmatively  all  essen- 
tial facts  to  bring  himself  within  the  jn-ovisious  of  the 
statute.'" 

Zilen  of  the  exe'iittion. 

In  respect  to  real  estate,  the  lien  depends  npon  the  dock- 
eting of  the  judgment,  and  not  upon  the  delivery  of  the 
execution  or  the  levy  thereof.^'  But  it  is  otherwise  in 
respect  to  personal  property.  In  such  case  the  execution 
does  not  bind  tlie  goods  of  the  debtor,  until  delivered  to 
the  sheriff, '-  and  then  only  those  goods  which  are  within 
the  jurisdiction  of  the  otticer.  But  on  the  delivery  of  an 
execution  to  the  sheriff,  a  lien  is  created  upon  the  personal 
property,  except  as  to  one,  who,  between  the  delivery  and 
the  levy,  becomes  a  hona  fide  purchaser,  or  mortgagee, 
without  notice.'^ 


*  See  19  Wend.,  475.  "  M>iir  v.  Litch,  1  Barb.,  341 ;  2  R.  S., 
«  18  Johns..  400.  3G0,  ij  12;  2  N.  T.  S.  at  L,,  ;$73; 
"  .-{  Code  11.,  17.  5  Hill,  228. 

*  14  Barb.,  456.  "  2  R.  S.,  365.  §  13;  2  N.  Y.  S.  at  L., 
'  14  How..  519.  379;    21  BaiV,  469;    5  Denio,  198; 

•  11  N.  Y.  L  0.,  248.  idem.  619. 

'  3  Abb.,  466.  "  Thompson  v.  I^n  VecJiten,  5  Abb.,  458 ; 

•  Morse  v.  Gmld,  11  N.  Y.,  281.  Heals  v.  Allen,  18  Johns.,  363;  also 
»  31  Barb.,  179;   22  N.  Y..  249.  idem,  311. 

^^  EMlnian  V.  Caswell.  8  How.,  75;  14 
Barb.,  456;  also  Id.,  9. 


THE   EXECUTION.  41 

As  between  the  parties,  tbe  debtor's  goods  are  not 
bound  until  an  actual  levy  by  the  otticer  ;  and  until  then 
the  sheriff  has  no  such  proi)ert3^  therein  as  will  enable  him 
to  maintain  trover  against  one  who  converts  them.^  But 
such  execution  in  the  sheriff's  hands,  though  not  levied,  is 
entitled  to  preference  over  a  subse(pient  mortgage  or 
assignment  to  secure  antecedent  debts." 

Under  the  statute,^  the  title  of  any  purchaser  in  good 
faith,  acquired  prior  to  the  actual  levy,  without  notice  of 
the  execution  being  issued,  is  complete  and  cannot  be 
divested  by  the  fact  that  an  execution  against  the  goods 
had  been  delivered  to  the  sheriff". 

If  the  execution  becomes  dormant  in  the  hands  of  the 
shei'iif,  the  sale  of  a  particular  chattel  for  a  fair  price, 
without  any  fraudulent  intent  on  the  part  of  the  pur- 
chaser, will  not  be  void ;  as,  where  an  execution  has  laid 
in  the  hands  of  the  sheriff",  without  any  levy,  for  a  year,* 
so  where  the  plaintiff"  ordered  the  sheriff",  after  levy,  to 
suspend  further  proceedings  until  he  should  give  further 
directions,  it  was  held  that  the  execution  became  dormant, 
and  that  a  purchaser  from  the  defendant  acquired  a  good 
title."^  So  where  the  sheriff*  was  directed  not  to  sell  unless 
forced  to  do  so  by  subsequent  judgments,  until  further 
orders,  the  execution  was  held  to  be  dormant.*^ 

Where  the  evidence  warrants  the  inference  that  the 
plaintiff's  issued  their  execution,  not  with  an  absolute 
intention  to  collecting  their  debt,  but  partly,  at  least,  with 
a  view  to  cover  the  .i)roperty  of  the  debtor  for  his  use,  and 
the  execution  has  not  been  enforced,  it  becomes  dormant, 
and  constructively  fraudulent  as  against  subsequent  execu- 
tions,' and  also  as  to  bona  fide  purchasers.** 

But  an  execution  does  not  become  dormant  by  the  neg- 
lect of  the  sheriff"  merely  without  any  act  of  the  plaintiff"; 
and  the  neglect  of  the  ])laintitt",  for  six  months  after  the 
return  day,  to  take  measures  to  compel  a  return,  will  not 
render  it  dormant."  But  when  the  sale  of  the  goods  is 
l)ostponed  for  a  long  time,  necessarily  to  prevent  a  sacrifice 
of  the  property  levied  upon — as  hides  in  the  tan-vats — 


»  Hokhkiss  v.  Mc  Viclcer,  12  Johns.,  403 ;     "  Kimhall  v.  Munrjer,  2  Hill,  :;G4. 

see  4  Cow..  4G1.  '  Kelloqg  v.  Griffin.  17  Joiin.s..  274. 

«  3  Barb.  Cli..  CSO;   11  Paige.  21.  "  Ball  v.  Shell.  21  Weiul.,  222. 

^  2  R.  S.,  3GG,  §  17.  "  Iiu.s,sell  v.  Gibhs,  5  Cow.,  aOO;  sec  nlsf) 

♦  Bliss  V.  Ball,  9  JoJins.,  i:{2.  9  Weiul.,  258;  4  Id.,  332;  G  Hill, 

*  Jlickolc  V.  Coaks,  2  Wend.,  419.  232,  5  Abb.,  458. 

II.— 6. 


42  ADMmiSTEATION   OF   CIVIL  JUSTICE. 

even  tliougli  at  the  direction  of  the  plaintiff,  the  execution 
will  not  become  dormant.^ 

Only  a  creditor  or  a  hona  fide  purchaser  can  object  that 
an  execution  has  become  dormant.^ 

T/ie  effect  of  a  levy  and  the  proceedings  thereafter. 

Where  the  goods  are  permitted  to  remain  in  the  posses- 
sion of  the  debtor  after  the  levy,  the  execution  is  deemed 
fraudulent  as  against  subsequent  executions,  especially 
where  the  creditor  directs  delay .^  But  merely  leaving  the 
goods  in  the  possession  of  the  defendant  for  a  short  time, 
where  there  is  a  reasonable  excuse  for  the  same,  will  not 
defeat  the  levy  ;*  so  a  returning  of  the  goods  to  the  posses- 
sion of  the  debtor  after  levy,  in  pursuance  of  the  directions 
of  the  creditor,  but  without  any  direction  to  suspend  or 
delay  the  execution,  will  not  necessarily  render  the  execu- 
tion fraudulent  or  void.^ 

After  levy  the  property  is  deemed  to  be  in  the  custody 
of  the  law;  consequently,  it  is  not  liable  to  be  replevied^ 
nor  distrained  for  a  taxJ  The  goods  are  in  the  possession 
of  the  officer ;  and  one  with  whom  he  leaves  them  for  safe 
keeping  is  merely  his  servant.^  The  property  being  in  the 
custody  of  the  officer  of  the  law,  the  plaintiff  in  execution 
has  no  property  therein  and  can  maintain  no  action  for 
a  wrongful  taking  of  the  goods  by  a  third  person.^ 

When  the  execution  has  been  levied  upon  sufficient 
property  to  satisfy  it,  the  officer  cannot  make  a  second 
ievy.^"  Where  a  second  execution  is  received  after  a  levy 
has  been  made  by  the  sheriff  on  a  prior  execution,  the  first 
levy  will  answer  for  both;"  having  levied  the  first  the 
property  is  in  his  custody,  and  the  receipt  of  the  second 
execution  operates  as  a  constructive  levy  upon  the  same 
property.^^  But  if  the  first  levy  should  prove  a  nulUty, 
then  a  levy  of  the  others  would  be  necessary.^^ 

The  allowance  of  a  writ  of  certiorari,  if  served  after  a 


>  7  Cow.,  560.  "  Smith  v.  Burtis,  6  Johns.,  197 ;  Bur- 

«  9  Wend.,  258.  rell  v.  Ackei;  23  Wend.,  606 ;  3  HUl, 

*  Storm  V.  Wood,  11  Johns.,  110;  Reed          215. 

V.  Barber,  3  Cow.,  272;  RusseU  v.     "  1  Denio,  335;  3  Barb.,  518. 

Gihhs,  5  Cow.,  390.  "  12  Johns.,  207 ;  22  Barb.,  522. 

*  11  Wend.,   548;    Farrington  v.  Sin-   "  17  Johns.,  116. 

Clair,  15  Johns.,  428.  «  1  Hill,  559;  11  Paige,  21;  2  N.  T., 

*  Reed  v.  Barber,  3  Cow.,  272.  451. 

*  2  Wend.,  475;  5  Denio,  619.  "  1  Barb.,  542. 

*  17  Johns.,  128;  7  Abb.,  12. 


THE  EXECUTION.  43 

levy  has  been  made,  does  not  operate  as  a  supersedeas}  But 
under  the  provisions  of  the  statute,^  a  writ  of  error,  accom- 
panied with  an  order,  stays  further  i)roceedings  on  an 
execution  which  has  been  levied;  for  a  mere  levy  is  not 
deemed  to  be  a  full  execution  within  the  meaning  of  the 
statute.' 

What  constitutes  a  levy. 

A  manual  interference  is  not  requisite  to  constitute  a 
levy  and  transfer  of  the  chattel.  The  i)roperty  being 
present,  subject  to  the  control  of  the  officer  who  declares 
the  levy,  and  asserts  his  authority  over  the  same  in  virtue 
thereof,  is  sufficient.*  But  the  mere  fact  that  the  goods 
are  within  the  view  and  control  of  the  officer  during  the  life 
of  the  execution,  will  not  be  sufficient  to  constitute  a  levy, 
unless  he  asserts  his  authority  over,  and  title  to,  the  goods, 
by  virtue  of  the  execution.^  So  merely  seizing  a  few  articles 
outside  a  warehouse,  and  proclaiming  a  levy  on  the  goods 
locked  up  within,  is  not  sufficient.  If  he  would  levy  on 
the  goods  in  the  building,  he  should  enter  it  and  have 
them  within  his  view  and  power;  and,  if  necessary  to 
accomplish  this,  he  may  break  open  the  building  for  that 
purpose,  and  he  should  seize  the  goods  and  make  an  in- 
ventory of  them.^ 

As  the  officer  should  assert  his  title  to  the  goods  by 
virtue  of  his  levy,  the  goods  must  be  brought  within  his 
view  and  be  subject  to  his  control.  Thus,  where  an  officer 
went  with  the  debtor  on  to  his  farm,  and  saw  and  inven- 
toried several  articles,  and  also  inventoried,  at  the  instance 
of  the  debtor,  cattle  which  were  in  another  field  and  out  of 
view  behind  a  hill,  it  was  held  to  be  no  levy  upon  the  cat- 
tle as  against  a  purchaser  in  good  faith.'  It  is  the  policy 
of  the  law  to  require  the  officer  to  so  act  in  making  the 
levy,  that  it  can  be  publicly  known  that  the  property 
levied  upon  is  in  his  possession  —  at  least  constructively — 
and  hence  his  acts  should  be  open  and  unequivocal  and 
publicly  performed." 

To  bind  the  defendant  in  execution  a  less  formal  levy 


»  3  Hill,  230;  17  Johns.,  34.  *  Haggerti/  v.  Wilber,  16  Johns..  '287. 

«  2  R.  S.,  596,  597,  §§  29,  30;  2  N.  Y.  '  Van  Wyck  v.  Pine,  2  Hill,  666;  see 

S.  at  L.,  619.  also  19  Wend.,  495. 

'  See  3  Hill,  473.  "  Beekman  v.  Lansing,  3  Wend.,  446; 

*  Barker  v.  Binningcr,  14  N.  Y.,  270.  also  14  Wend.,  123;  5  Denio,  198. 
»  Westervdlv.  Finckney,  14  Wend.,  123. 


44  ADMINISTRATION   OF   CIVIL  JUSTICE. 

may  be  sufficient,^  but  where  the  rights  and  interests  of 
innocent  parties  are  concerned,  the  lev}^  can  be  made  only 
by  liavinii'  the  goods  within  view  and  subject  to  the  con- 
trol and  disposition  of  the  officer,  he  asserting  his  author- 
ity and  control  publicly  by  virtue  of  the  execution.^ 

"Where  the  othcer  levies  upon  property  which  cannot  be 
reduced  to  possession  immediately,  as  upon  growing-  crops 
of  corn  or  wheat,  &c.,  it  will  be  sufficient  to  make  the 
levy  openly  and  publicly,  and  the  sale  may  be  delayed 
until  the  time  of  the  harvest.^ 

In  respect  to  real  estate,  it  is  held  that  a  formal  levy 
upon  the  land  is  unnecessary.  That  the  judgment  binds 
the  land,  and  the  execution  comes  as  a  power  to  sell,  that 
is,  in  all  cases  where  the  judgment  is  a  lien  on  the  land,  a 
formal  levy  is  unnecessary.'*  Therefore,  it  was  held  that 
where  the  real  estate  had  been  sold  for  an  amount  only 
sufficient  to  satisfy  the  judgment  in  part,  and  the  judgment 
debtor  redeemed  so  that  the  purchaser  got  back  his  ])ur- 
chase-money,  the  lien  of  the  judgment  still  continued 
on  the  land,  and  the  sheriff  might  proceed  to  sell  the  same 
again  on  the  original  execution,  without  a  new  levy,  to 
satisfy  the  balance  of  such  judgment.* 

Dormant  executions. 

Executions  lose  their  lien  on  jn'operty  by  becoming 
dormant  in  the  hands  of  the  officer.  An  execution  is  given 
the  party  for  the  ])urpose  of  enabling  him  to  collect  his 
judgment  debt,  not  for  the  purpose  of  obtaining  security 
or  covering  the  property  of  the  debtor.  When  the  sheriff 
has  received  an  execution,  the  law  points  out  his  duty 
in  respect  thereto  and  holds  him  res])onsible  for  performing- 
it.  If  the  plaintiff  interfere  with  the  execution  of  the 
process,  and  seek  to  pervert  it  to  other  than  legal  puri)oses, 
he  does  so  at  his  peril,  and  will  thereby  be  liable  to  lose 
all  rights  which  accrued  to  him  by  the  delivery  thereof  to 
the  sheriff". 

It  is  a  well  settled  principle  that  mere  neglect  or  delay 
on  the  part  of  the  officer  will  not  render  the  execution 
dormant  in  his  hands.  But  if  such  neglect  or  delay  was 
occasioned  by  any  interference  of  the  party  in  interest  in 
the  execution,  then  the  execution  will  become  dormant 


*  See  J/ii/is  V.  Thurslij,  11  How..  121.         "  Wood  v.  Colvin,  5  Hill,  22S;  see  23 

"  Eay  V.  Harcort,  19  Weud.,  495.  Wend    498. 

'  2  Johns.,  418.  , 


THE   EXECUTION.  45 

aiul  will  be  of  no  force  against  subsequent  jndgmcnt 
creditors  or  bona  fide  piu'chasers.^  Thus,  where  after  levy 
the  sberiif  was  instructed  to  delay  the  sale  until  a  junior 
execution  was  received,'-  or  where  the  i^laintiff  directed  a 
stay,  after  levy,  until  further  directions,  and  in  the  mean 
time  the  property  was  sold  by  the  defendant  to  a  hona  fide 
purchaser.'  So  also  when  he  directed  a  levy  to  be  made 
and  yet  to  be  kept  secret  from  the  defendant/  So  where 
the  defendant  was  permitted  to  use  and  consume  the  goods 
levied  on/  In  these  and  other  similar  cases,  the  condnct 
of  the  plaintiff  was  deemed  to  be  fraudulent  in  such  a  use 
of  the  execution,  and  all  the  rights  which  he  might  have 
acquired  by  its  delivery,  and  in  its  i)roper  use  as  against 
subsequent  judg'uient  creditors  and  hona  fide  purchasers, 
were  lost  to  him. 

The  law  simply  requires  the  party  using'  its  process  to 
act  promptly  and  in  good  faith,  and  not  to  attempt  to 
pervert  it  to  uses  not  legall}'  intended.  The  mere  leaving 
the  property  levied  upon  in  the  possession  of  the  defend- 
ant is  not,  of  itself,  a  fraudulent  act,  and  unless  there  is 
some  other  mark  of  fraud  attending  it,  as  delaying  the 
sale  or  permitting  the  deiendant  to  use  or  consume  the 
proi)erty,  will  not  render  the  execution  dormant."  Any 
indulgence  which  the  plaintiff  may  give  the  defendant 
that  does  not,  of  itself,  interfere  with  the  timely  execntiou 
of  the  process,  will  not  be  deemed  a  fraud  upon  the  law.' 

TJie  custody  of  the  property. 

Having  made  a  valid  levy,  and  taken  the  goods  into  his 
possession,  the  sheriff  is  bound  to  exercise  ordinary  dili- 
gence in  taking  care  of  them.  He  is  not  an  insurer  of  the 
goods,  and  is  not  liable  for  loss  bj'  fire,"  or  by  theft, 
robbery  or  accident,  unless  it  was  the  result  of  negligence 
or  carelessness  on  his  part.^  In  case  of  loss  or  destruction 
while  in  his  custody,  he  is  required  to  give  clear  and  satis- 
factory evidence  that  it  was  not  occasioned  by  his  neglect 


»  12  Wend.,  404;  5  Cow.,  390;  5  Ilill,  '  G  Hill.  232  ;  12  Wc:kI.,  404;  UJolins., 

380.  1 1 0. 

«  :C<)W..560:  2Hill,3G4;  llJoIins.,  110.  '  See  Crock.  SlicrifT,  §  412. 

*  2  WciHl.,  419.  "  5  Ilill,  r)91  ;   5  Doiiiu,  593. 

«  IG  Barb..  589.  "  G  Jolm.s.,  12;  9  Jolius.,  385. 
*2   Wend.,   419;    15  Jolins.,   428;    17 

Id.,  332. 


46  AMINISTRATION  OF  CIYTL  JUSTICE. 

or  want  of  such  care  as  a  prudent  man  would  take  of  his 
own  property.^ 

The  sheriff  may  leave  the  property  levied  upon  with  the 
defendant,  but  it  will  be  at  his  own  risk  if  the  same  be 
lost  or  distroyed,  unless  by  the  act  of  God,  or  the  public 
enemies.  For  his  own  security,  however,  he  shoidd  cause 
the  property  levied  upon  to  be  removed,  unless  a  responsi- 
ble person  will  receipt  the  property  upon  an  inventory 
made  of  the  same,  agreeing  to  return  the  same  to  the 
sheriff,  at  a  time  and  place  specified  therein,  or  when 
thereunto  demanded,  or  to  pay  the  debt?  The  receipt  for 
the  property  given  to  the  sheriff  in  such  case,  should  state 
the  receiving  of  the  same  from  the  sheriff  who  had  levied 
upon  it,  and  that  the  receiptor  would  return  the  same  and 
every  part  thereof,  to  the  sheriff  on  demand,  or  pay  the 
debt.  Such  receipt  is  a  valid  and  binding  agreement,^ 
but  as  security,  it  should  not  extend  beyond  the  legal 
liability  of  the  sheriff,  lest  it  should  thereby  become  void.* 

If  the  property,  thus  taken  by  the  sheriff,  and  receipted 
to  him  as  above,  be  in  reality  the  property  of  the  judgment 
debtor,  and  is  not  forthcoming  on  demand  by  the  sheriff, 
the  undertaking  or  receipt  being  for  the  whole  debt,  is  a 
payment  of  the  judgment,  and  a  satisfaction  of  the  execu- 
tion :  and  the  sheriff  cannot  seize  other  property  of  the 
defendant,  even  though  the  property  taken  was  insufficient 
to  pay  it.  He  can  only  look  to  his  receiptor's  undertaking, 
and  depend  upon  that  for  his  remedy.^ 

But  if  the  property  taken,  was  not  subject  to  levy,  and 
had  been  retaken  by  the  defendant ;  or  was  not  his 
property,  but  that  of  another,  who  had  repossessed  him- 
self of  it,  it  would  be  otherwise.  For  it  is  now  a  well 
settled  rule,  that  when  the  defendant  has  neither  paid  the 
debt  nor  lost  his  property  by  reason  of  the  levy,  such  levy 
is  no  satisfaction  of  the  execution.^ 

The  sheriff  may  pay  the  execution,  and  then  repossess 
himself  of  the  property  receipted  to  him,  whether  he  find 
it  in  the  hands  of  the  receiptor,  or  other  person,  either  for 
the  purpose  of  selling  it  or  returning  it  to  the  defendant, 
&c.^     The  receiptor,  refusing  to  deliver  the  property  to 


^  See  5  Denio,  595.  ^  12  Johns.,  207. 

*  Crock.  Sherifif,  §  415.  ^  1  Denio,  574 ;  23  Wend.,  490 ;  I  Sand. 
=  23  Wend.,  606.  Ch.,  195 ;  Crock.  Sheriff,  166. 

*  5  Hill,  588.  •'  23  Wend.,  606. 


THE  EXECUTION.  47 

the  sheriff  on  demand,  will  be  liable  to  him  on  his  under- 
taking or  receii^t  to  pay  the  whole  debt. 

Proceedings  ichen  tlie  pro2:)erty  levied  on  is  claimed  by  third  persons. 

In  levying  upon  property  the  sheriff  must  act  upon  his 
own  responsibility.  Having  received  an  execution  against 
property,  he  must  make  reasonable  inquiry  to  ascertain  if 
the  defendant  has  any  property  in  his  county  subject  to 
levy ;  and  finding  him  in  the  possession  of  property, 
whether  claimed  b}'  him  or  others,  it  is  his  duty  to  make 
a  lev}^  thereon ;  and  neglecting  to  do  so,  and  being  sued 
for  such  neglect,  the  burden  of  proving  that  such  property 
was  not  subject  to  levy  is  thrown  upon  him.^  On  the 
contrary,  levying  on  the  same  when  it  does  not  belong  to 
the  defendant,  he  renders  himself  liable  to  the  true  owner 
for  an  unwarranted  interference  with  such  property.  Being 
thus  situated  in  respect  to  possible  liabilities,  either  to  the 
judgment  creditor  or  other  persons,  the  law  permits  the 
sheriff  to  protect  himself,  to  a  certain  extent,  in  cases 
where  the  plaintiff  in  execution  does  not  tender  the  proper 
indemnity  to  him,  by  permitting  him  to  summon  a  jury  to 
try  the  question  of  property,  on  giving  to  the  parties  due 
notice  of  the  time  and  place  of  such  hearing. 

Thus,  where  a  third  person  claims  the  property  levied 
ui3on,  and  the  sheriff  has  reason  to  doubt  that  it  belongs 
to  the  defendant,  and  the  plaintiff  in  execution  does  not 
tender  to  him  jjroper  indemnity,  he  may  proceed  and  sum- 
mon a  jury  to  try  the  title  of  the  i)roperty.  In  such  case 
he  summons  twelve  qualified  jurors,  and  gives  the  parties 
notice  of  the  time  and  place  of  hearing,  and  he  presides 
and  swears  the  jurors  and  witnesses.  The  attendance  of 
witnesses  is  enforced  by  subpoena  out  of  the  court  from 
which  the  execution  issued.  The  jury,  hearing  the  testi- 
mony, retire  from  all  others  for  the  purpose  of  delibera- 
tion, and  make  and  sign  their  inquisition,  stating  in  whom 
they  find  the  property  to  be  invested,  which  finding  or 
inquisition  is  also  signed  by  the  sheriff.  If  they  find  the 
title  not  to  be  in  the  defendant  in  execution,  the  slieriff 
will  be  justified  in  returning  the  execution  nulla  J)ona, 
unless  indemnified  to  proceed  by  the  plaintiff,  in  which 
case  he  must  proceed  to  sell.^    But  if  indemnity  is  not 


5  Denio,  203.  ^  1  Hall,  595;  8  Cow.,  65;  1  Wend.,  238. 


48  ADMINISTRATION   OF   CIVIL  JUSTICE. 

tendered,  the  inquisition  is  conclusive  in  favor  of  the 
Blieriff,  so  that  lie  will  not  he  liable  to  the  ijlaiutiff  for  a 
falsii  return  in  returning-  nulla  l)0)m} 

Tile  inquisition,  however,  not  proceeding  from  the  court, 
but  being  intended  merely  to  indemnify  the  sheriff  in 
making  his  return,  is  not  conclusive  in  his  favor,  in  an 
action  against  him  for  taking  the  goods.-  The  plaintiff 
in  execution  is  not  bound  to  tender  an  indemnity  until  the 
jury  have  passed  upon  the  question  of  property.'' 

The  stay  of  an  execution  in  the  hands  of  the  sheriff. 

Where  an  execution  has  been  put  into  the  hands  of  the 
sheriff,  it  is  liable  to  be  stayed  by  an  appeal  from  the 
judgment  on  which  it  issued,  or  by  an  order  of  the  court, 
or  by  an  injunction,  &c.  The  execution  in  the  hands  of 
the  ofiicer,  is  subject  to  the  control  of  the  court,  at  all 
times,  and  the  officer  is  required  to  obey  the  orders  of  the 
conrt  thereon,  and,  therefore,  an  order  or  an  injunction 
staying  the  execution  of  such  process,  will  be  a  sufficient 
excuse  for  the  sheriff  for  not  executing  the  process  accord- 
ing to  its  mandate. 

13ut  in  general  the  sheriff  is  not  bound  to  regard  or 
notice  any  injunction,  order  or  appeal  until  it  is  duly 
served  upon  him  ;  and  when  such  notice  is  duly  served 
upon  him,  he  is  bound  to  obey  by  suspending  further  i)ro- 
ceedings  on  such  execution.  In  case  of  appeal  from  the 
judgment  on  which  execution  issued,  directing  the  i)a3'- 
ment  of  money,  there  is  no  stay  of  execution  until  security 
lias  been  filed  according  to  the  provisions  of  the  statute.* 
If  the  judgment  appealed  from,  direct  the  assignment  or 
delivery  of  property,  the  execution  thereof  will  not  be 
stayed  by  appeal,  unless  the  things  required  to  be  assigned 
or  delivered,  be  brought  into  court,  or  placed  in  the 
custody  of  such  officer  or  receiver  as  the  court  shall 
appoint;  or  unless  an  undertaking  be  entered  into  on  the 
part  of  the  appellant,  by  at  least  two  sureties,  and  in  such 
amount  as  the  court  or  a  judge  thereof,  or  a  county  judge 
shall  direct,  to  the  effect  that  the  appellant  will  obey  the 
order  of  the  appellate  court  u{)on  the  appeal.^  And  if 
the  judgment  appealed  from,  directs  the  sale  or  delivery 


'  Crocker's  Slieriff,  180.  §  438.  '  S  Cow.,  65. 

M    Hall.  595;  2    H.  Bl.,    437;    Grab.     ■■  Code,  §  335. 
Pr.,  371.  "Code,  §336. 


THE  EXECUTION.  49 

df  possession  of  real  property,  the  execution  thereof  will 
not  be  stayed  by  appeal  unless  a  written  undertaking  be 
executed  on  the  part  of  the  appellant  with  two  sureties, 
to  the  effect  that,  during  the  possession  of  such  property 
by  the  appellant,  he  will  not  commit,  or  suffer  to  be  com- 
mitted, auy  waste  thereon,  and  that  if  the  judgment  be 
affirmed,  he  will  pay  the  value  of  the  use  and  occupation 
of  the  property  from  the  time  of  the  appeal  until  the 
delivery  of  the  possession  thereof  pursuant  to  the  judg- 
ment, &c.^ 

The  sheriff  having  the  process  of  execution  upon  such 
judgments,  and  being  charged  with  the  execution  of  the 
same,  is  notified  of  the  compliance  of  the  appellant  with 
the  provisions  of  the  statute  by  which  further  proceedings 
thereon  are  stayed,  by  service  upon  him,  of  a  certificate  of 
the  clerk  of  the  court,  stating  the  due  filing  of  the  proper 
security,  or  the  performance  of  such  other  act  as  bj^  law 
is  required  to  be  performed,  and  until  thus  served,  he 
should  proceed  with  the  execution  of  such  process,  and 
if  the  sureties  are  excepted  to,  and  they  or  others  do  not 
justify  according  to  the  rules  of  practice,  the  appeal  will 
be  regarded  as  if  no  undertaking  had  been  given. ^ 

The  granting  and  service  of  an  injunction,  or  order,  or 
th0  bringing  of  an  appeal  and  notice  thereof,  does  not 
undo  anything  that  has  been  i^reviously  done  by  the 
sheriff  in  the  execution  of  the  process.  Having  arrested 
the  person  of  the  defendant,  or  attached  property,  he  still 
retains  him  or  it  in  his  custody  as  if  no  stay  had  been 
granted.  And  when  he  has  thus  levied  or  attached 
property,  he  may  proceed  to  perfect  his  inventory  and 
complete  the  ijossessiou  of  the  same,^  but  must  not  pro- 
ceed to  sell. 

If  the  execution  is  stayed  by  special  order  of  the  court, 
the  party  i)rocuring  the  order  may  see  that  the  sheriff  is 
duly  served  with  a  copy  of  the  same,  or  he  may  leave  it 
with  the  plaintiff  in  execution  to  see  that  no  further  pro- 
ceedings are  had  thereon,  after  he  has  been  duly  notified. 

The  sale. 

WTiere  the  sheriff  has  levied  the  execution  upon  property 
his  next  duty  is  to  sell  the  same  in  the  manner  pointed 


'  Code,  §  338.  »  Crock,  sheriff,  §  35. 

*•  Code,  I  341. 

n.— 7 


60  ADIVITNTSTEATION  OF  CIVIL  JUSTICE. 

out  by  law.  Under  the  provisions  of  the  statute  there  can 
be  no  sale  of  any  goods  or  chattels  by  virtue  of  any  exe- 
cution unless  previous  notice  of  such  sale  shall  have  been 
given  six  days  successively,  by  fastening  up  written  or 
printed  notices  thereof  in  three  public  places  of  the  town 
where  such  sale  is  to  be  had,  specifying  the  time  and  place 
where  the  same  is  intended  to  be  had.^ 

It  is  a  penal  offense  for  any  person  to  take  down  or 
deface  any  such  notice  prior  to  the  time  of  sale  therein 
specified,  unless  upon  satisfaction  of  the  execution,  or  with 
the  consent  of  the  proper  parties.^  But  the  taking  down 
or  defacing  such  notices,  or  the  omission  of  the  sheriff  to 
set  them  up,  does  not  affect  the  validity  of  the  sale  to  a 
purchaser  in  good  faith,  without  notice  of  such  offense  or 
omission.^ 

Furthermore,  personal  property  must  be  present  and  ex- 
posed to  view  at  the  time  of  the  sale,  and  it  must  be  within 
view  of  those  attending  the  sale;  and  must  be- offered  in 
such  lots  as  are  calculated  to  secure  the  highest  price.* 

But  where  the  various  articles  are  at  the  same  place,  but 
cannot  be  gathered  so  as  to  be  in  view  without  great  ex- 
pense, or  where  the  sheriff  sell  stereotype  plates  by  pro- 
ducing an  impression  from  them,  the  plates  not  being 
produced  in  view,  such  being  the  usage  of  the  trade,  the 
sale  is  valid.^ 

So  also  the  articles  sold  must  be  pointed  out  to  the  bid- 
ders and  sold  specifically,  or  the  purchaser  will  acquire 
no  property  therein.*^  Thus,  if  an  ojQicer  sell  a  certain 
number  of  sheep  of  a  flock,  without  designating  which 
are  intended  to  be  sold,  the  sale  will  be  void.'  A  sale  of 
property  out  of  view  and  incapable  of  being  pointed  out, 
and  being  in  the  possession  of  a  third  party  under  claim 
of  right,  confers  no  title.'^ 

The  sheriff  is  required  to  exercise  a  sound  and  just  discre- 
tion in  the  sale  of  the  property.  He  is  not  always  justified 
in  selling  to  the  highest  bidder  where  that  is  greatly 
under  value.  If  he  cannot  obtain  a  reasonable  price,  he 
should  adjourn  the  sale  and  return  that  the  i)roj)erty  taken 


*  2  R.  S.,  366,  §  21;  2  N.  Y.  S.  at  L.,  *  Idem..  367,  §  23;  see  14  Johns.,  352. 

330:  1  Abb.,  162.  »  2  E.  D.  Smith,  440. 

»  2  R.  S.,  369,  §  39;  2  N.  Y.  S.  at  L.,  "  14  Johns.,  352 ;  17  Id.,  116. 

383.  •>  4  Barb.,  484. 

'  Idem.,  §  40.  *  1  N.  Y.  L.  0.,  346. 


THE  EXECUTION.  61 

remained  unsold  for  want  of  bidders.^  Where  the  sheriff 
refuses  to  exercise  such  discretion,  and,  at  the  instigation 
of  the  plaintiff,  insists  upon  selling  at  a  great  sacrifice  of 
defendant's  property,  the  court,  on  motion,  will  set  the 
sale  aside.  They  will  not  permit  unnecessary  oppression 
to  be  practiced  under  color  of  legal  authority.^  So  like- 
wise a  sale  may  be  adjourned,  after  it  has  been  commenced, 
to  a  different  place.  And  where  there  has  been  no  fraud 
on  the  part  of  the  officer,  or  abuse  of  his  discretion,  he 
will  not  be  liable  as  a  trespasser.^ 

The  sale  must  be  at  public  vendue  between  the  hours  of 
nine  o'clock  in  the  morning  and  the  setting  of  the  sun."* 
It  is  held  that  the  sale  of  property  upon  execution  after 
sunset  is  void,  and  that  the  proceedings  of  the  sheriff"  are 
thereby  rendered  void  ab  initio.^ 

Although  the  sale  is  required  to  be  in  such  lots  as  is^ 
calculated  to  secure  the  highest  price,  yet  at  the  request 
of  the  parties  interested,  a  number  of  articles  may  be  sold 
in  one  lot.*^  And  where  the  goods  are  sold  in  mass  at  the 
defendant's  request,  one  who  is  not  a  creditor  cannot  object 
or  avoid  the  sale  on  that  ground.' 

The  sheriff  having  levied  upon  defendant's  goods,  can- 
not lawfully  deliver  them  to  the  plaintiff  in  execution,  in 
satisfaction  of  his  debt,^  nor  can  he  pay  the  plaintiff  with 
his  own  money  and  keep  the  goods  for  his  own  use,  or 
afterwards  levy  upon  them,  even  though  it  had  been  agreed 
between  him  and  the  defendant  that  he  might  retain  the 
execution  and  use  it  for  his  own  indemnity.^  A  title  can- 
not be  acquired  under  an  execution  issued  upon  a  judgment 
which  had  been  paid;'"  for  where  a  judgment  has  been 
satisfied,  there  is  no  longer  any  power  to  sell.^^ 

The  sheriff  has  no  right  to  sell  for  the  purpose  of  col- 
lecting his  fees  after  due  notice  of  settlement  and  a 
discharge  of  the  judgment.^^ 

But  the  goods  may  be  sold  to  the  plaintiff,  and  may  be 
delivered  to  him  without  x^iiyinent,  unless  the  purchase- 
money  amount  to  more  than  is  due  him,  in  which  case  the 


'2    Cow.,    139;    3   Camp.    Rep.,  521;     *  28  Cro.  Eliz.,  504. 

Stark.  Rep.,  43.  *  Beed  v.  Pryne,  7  Johns.,  426;  12  Id., 

'  McDonald  v.  Neilson,  2  Cow.,  139.  207  ;   15  Id.,  443. 

»  5  Johns.,  345.  "  1  Cow.,  622. 

*  2  R.  S.,  369,  §  36.  "  2  Hill,  566. 

*  Carnrick  v.  Myers,  14  Barb.,  9.  "  Craft  v.  Merrills,  14  N.  Y.,  456;  see 

*  2  E.  D.  Smith,  440.  also  S  How.,  104 ;  4  Wend.,  474, 
^  9  Cow.,  274. 


52  ADMINISTKATION  OP  CIVIL  JUSTICE. 

surplus  sboulcl  be  paid  over,^  and  where  after  sale  to  the 

creditor,  and  the  execution  was  set  aside  as  fraudulent, 
and  the  sheriff  was  directed  to  apply  the  moneys  collected 
on  that  execution  to  satisfy  other  executions  in  his  hands ; 
but  the  sheriff  not  having  received  any  money,  returned 
nulla  hona  to  an  execution  delivered  to  him  prior  to  the 
order  of  the  court  setting  aside  the  other  execution,  it 
was  held  that  he  was  not  liable  for  a  false  return.^ 

As  to  2y>'ionti/  lohere  there  are  several  executions. 

Executions  duly  delivered  to  the  sheriff  take  precedence 
according  to  their  order  where  levies  are  made  under  them 
prior  to  the  sale  of  the  property.  Thus  it  was  held  that 
where  two  executions  were  duly  delivered  to  the  sheriff, 
and  he  levied  the  last  one  delivered,  that  the  first  had  the 
precedence  provided  an  actual  levy  was  made  under  it 
prior  to  the  sale.^  But  where,  after  levy,  the  plaintiff  in 
execution  directs  an  indefinite  delay,  as  "not  to  sell  until 
further  orders,"  such  precedence  may  be  lost.*  But  his 
consent  to  a  postponement  of  the  sale  until  after  the  return 
day,  without  giving  to  the  debtor  the  use  of  the  property, 
or  agreeing  to  any  other  advantage  to  him,  will  not  render 
an  execution  first  received  dormant  as  to  other  executions.^ 
If  two  executions  are  delivered  together,  and  issued  upon 
judgments  docketed  at  the  same  time,  the  money  collected 
is  to  be  applied  equally  until  the  lesser  one  is  satisfied.^ 

The  latest  period  for  making  a  levy  is  on  the  return 
day  of  the  writ."^  So  where  the  sheriff,  having  two  exe- 
cutions against  the  same  defendant,  levies  a  part  of  the 
amount  of  the  prior  execution,  and  after  the  return  day 
of  that  execution  proceeds  to  make  another  levy,  the  sum 
made  on  the  second  levy  must  be  applied  on  the  junior 
execution.^  Having  a  number  of  executions  with  liens 
of  different  dates,  the  sheriff  must  apply  the  bid  on  the 
first  parcel  sold  in  satisfaction  of  the  oldest  lien.^ 

Where  goods,  after  the  delivery,  but  before  actual  levy, 
have  been  removed  to  an  adjacent  county  by  the  debtor, 


^  19  Jolins.,  84.  "  1  Gov.'.,  215. 

"  19  Johns.,  84.  '  13  Johns.,  255. 

'  Camp  V.  Chamherlahi,  5  Denio,  198 ;     *  13  Johns.,   255 ;   see  also  4  Johns., 

5  Cow.,  390;  5  Barb.,  385.  450. 

*  Krm'jer  v.  Barnard,  5  Hill.  377.  '  1  How.,  77. 
•See  5  Cow.,  395;  3  Id.,  280;  12  N. 

Y.  L.  0.,  7. 


THE  EXECtlTIOX.  63 

and  have  been  there  taken  and  sold  by  the  sheriff  under  a 
junior  execution,  the  i)roceeds  in  the  hands  of  the  sheriff 
may  be  ordered  to  be  applied  first  to  the  first  execution.^ 

An  execution  against  all  the  members  of  a  partnership 
firm,  takes  precedence  over  one  previously  issued  against 
a  single  member  thereof.^  Consequently,  when  the  sheriff 
had  levied  an  execution  against  an  individual  member, 
and  subsequently  he  receives  one  against  the  firm,  he  is 
required  to  sell  on  the  latter  execution,  and,  if  necessary, 
return  niiTla  hona  as  to  the  former/ 

Where  the  sheriff  had  two  executions  fi'om  different 
plaintiffs,  claiming  the  prior  one  to  be  dormant  in  his 
hands,  and  he  sold  the  property  to  the  plaintiff  in  the 
prior  execution,  and  delivered  the  same  to  him,  who 
refused  to  pay  for  it,  insisting  upon  his  right  to  a^jply  the 
money  to  his  own  execution,  and  the  sheriff  brought  an 
action  to  recover  the  pm^chase-money,  the  court  were  of 
the  oijinion  that  the  sheriff  was  not  entitled  to  recover. 
That  in  case  of  contest,  it  was  proper  for  the  sheriff  to 
bring  the  money  into  court ;  when  the  property  had  been 
sold  and  the  purchaser  refused  to  pay,  he  should  not 
deliver  the  propertj^  but  might  sell  again.  But  if  he  chose 
to  deliver  the  proj)erty,  and  sue  for  the  money,  the  pur- 
chaser might  defend  by  showing  that  the  money  belonged 
to  him.* 

WhcU  interest  in  real  estate  tnay  he  sold  under  execution. 

The  execution  commands  the  officer,  if  sufficient  goods 
and  chattels  cannot  be  found,  that  he  then  cause  the 
amount  of  such  judgment  to  be  made  of  the  real  estate 
of  the  person  against  whom  such  judgment  was  rendered, 
which  such  person  shall  have  had  at  the  time  of  docketing 
such  judgment — specifying  such  time — or  at  any  time 
afterwards,  in  whose  hands  soever  the  same  may  be.' 
And  when  the  judgment  is  against  any  person  as  ter- 
tenant,  heir  or  devisee  of  a  deceased  person,  the  execution 
commands  the  officer  to  make  the  amount  of  said  judg- 
ment of  the  real  estate  whereof  the  ancestor,  testator  or 
person  was  seized  at  the  time  the  said  real  estate  became 


'  18  Jolans.,  311.  *  5  Cow.,  390. 

»  1  Wend.,  311;  2  Id.,  533  ;  IG  Jolma.,     »  2  li.  S.,  267,  §  24;  2  N.  Y.  S.  at  L., 

102  ;   12  Id.,  131.  381. 

'  2  Wead.,  553. 


54  ADMINISTRATION  OF  CIVIL  JUSTICE. 

liable,  or  at  any  time  afterwards,  or  at  the  time  of  the  death 
of  such  ancestor,  testator  or  other  deceased  person,  accord- 
ing as  the  case  may  require,  unless  such  heir,  devisee  or 
terteuant  shall  have  made  his  own  estate  liable  to  such 
judgment.^ 

Lands,  tenements  and  real  estate,  bolden  by  any  one  in 
trust,  or  for  the  use  of  another,  are  liable  to  debts,  judg- 
ments, decrees,  executions  and  attachments,  against  the 
cestui  que  trust,  in  the  cases  and  in  the  manner  prescribed 
in  the  statute.^  The  trusts  to  which  the  statute  here 
refers,  are,  probably,  those  which,  by  law,  are  deemed  to 
be  executed,  vesting  the  legal  title  in  the  beneficiary,  and 
excluding  such  as  are  expressly  authorized  by  the  statute, 
or  such  as  are  resulting  trusts.^ 

In  general,  mere  trusts,  w^hether  expressed  or  implied, 
are  not  subject  to  sale  on  execution.  But  where  the  statute 
executes  the  use  declared,  and  vests  the  legal  title  in  the 
cestui  que  use,  the  interest  or  estate  becomes  the  subject 
of  sale  on  execution/ 

An  estate  for  years  is  a  chattel  real,  and  as  such  is  sub- 
ject to  sale  on  execution.*  The  equity  of  redemption  is 
liable  to  be  taken  and  sold  under  execution,  except  where 
the  judgment  is  for  the  debt  secured  by  the  mortgage ;  in 
■which  case  the  statute  provides  that  the  equity  of  redemp- 
tion shall  not  be  sold  under  such  execution.^  Where  the 
debt  upon  which  the  judgment  is  based  and  the  execution 
is  issued  is  secured  by  mortgage  of  real  estate,  the  attorney 
must  indorse  on  such  execution  a  brief  description  of  the 
premises  mortgaged,  referring  to  the  page  and  book  of 
the  record  in  which  the  same  is  recorded,  with  directions 
to  the  sheriff  not  to  levy  thereon."^ 

The  interest  of  persons  holding  contracts  for  the  pur- 
chase of  real  estate,  are  not  bound  by  the  docketing  of  a 
judgment  or  decree,  nor  are  they  bound  by  execution 
issued  thereon."^  But  such  interest  of  the  debtor  may  be 
ascertained  and  sold  under  a  decree  of  the  court."^ 

A  mere  naked  claim  of  ownership  of  land,  unaccompa- 


'  Idem,  §  25.  *  2  R.  S.,  368,  §  31;  2  N.  T.  S.  at  L., 
'Chap.  1,  Pt.  2,  R.  S.;  2  R.  S.,  727;  382. 

§  45:  15  N.  Y.,  481 ;  3  Barb.,  574.  "  Idem,  §  32. 

»  Garfield  V.  Eatmaker,  15  N.  Y.,  481.  ''  1  R.  S.,  744,  §  4,  1  N.  Y.  S.  at  L., 
*  2  R  S.,  359,  §  3 ;  2  N.  Y.  S.  at  L.,  696. 

371.  *  Idem,  §  5. 


THE  EXECUTION.  55 

nied  by  possession,  is  not  sucli  a  riglit,  title  or  interest  in 
land  as  can  be  sold  on  execution.^ 

Lands  which  have  been  fraudulently  conveyed  away 
for  the  purpose,  and  with  the  intent,  to  hinder,  delay  or 
defraud  creditors,  or  other  persons,  of  their  lawful  suits, 
damages,  forfeitures,  debts  or  demands,  are  liable  to 
seizure  and  sale  on  execution,  the  same  as  before  such 
conveyance,  as  the  statute  declares  such  conveyances  void,* 
except  as  to  purchasers  for  a  valuable  consideration, 
without  notice  of  such  fraudulent  intent  of  his  immediate 
grantor,  or  of  the  fraud  rendering  void  the  title  of  such 
grantor.^ 

iSak  of  real  property. 

It  is  the  rendition  and  docketing  of  the  judgment  which 
binds  the  real  estate,  and  not  the  levy  of  an  execution 
thereon  ;  therefore  a  formal  levy  on  land  is  unnecessary  ; 
the  judgment  binding  the  land,  the  execution  comes  as  a 
power  to  sell.* 

Before  real  estate  can  be  sold  upon  execution,  the  time 
and  place  of  such  proposed  sale  must  be  publicly  adver- 
tised previously  for  six  weeks  successively  in  the  following 
manner :  First,  a  written  or  printed  notice  thereof  must 
be  fastened  up  in  three  public  places  in  the  town  where 
such  real  estate  is  to  be  sold,  and  if  the  place  of  sale  be 
in  a  town  other  than  the  one  in  which  the  premises  are 
situated,  then  such  notice  is  also  to  be  fastened  up  in 
three  different  places  in  the  town  where  the  premises  are 
situated ;  Second,  a  copy  of  such  notice  must  be  printed 
once  in  each  week  in  a  newspaper  of  such  county,  if  there 
be  one ;  Third,  if  there  be  no  newspaper  printed  in  such 
county,  and  the  premises  to  be  sold  are  not  occupied  by 
any  person  against  whom  the  execution  is  issued,  or  by 
some  person  holding  the  same  as  tenant  or  purchaser 
under  such  person,  then  such  notice  must  be  published  in 
the  state  paper,  once  in  each  week,^  and  such  notice  must 
describe  the  premises  to  be  sold  with  common  certainty, 
by  setting  forth  the  name  of  the  township  or  tract,  and  the 
number  of  such  lot,  if  there  be  any,  and  if  there  be  none, 


>  1  Wend.,  502.  *  Wood  v.    CoMn,    5   Hill,   228 ;    Cm- 

»  2  R.  S.,  137,  §  1 ;  2  N.  Y.  S.  at  L.,  ningham  v,  Cassidy,  17  N.  Y.,  278, 

142 ;   See  numerous  issuea  uader  per  Denio,  J. 

the  latter  statute.  *  2  R.  3.,  368,  369,  §  34;  2  N.  Y.  3.  at 

•  Idem,  §  5.  L.,  382. 


56  ADMINISTEATION  OF  CIYIL  JUSTICE. 

then  by  some  other  appropriate  description.^  The  publi- 
cation of  notice  must  commence  six  fall  weeks  previous 
to  the  day  of  sale.  But  it  is  sufficient  to  post  a  notice  as 
required  by  statute,  forty-two  days  j^revious  to  the  sale, 
and  to  publish  a  copy  thereof  in  six  successive  numbers  of 
a  weekly  newspaper,  although  the  first  publication  in  the 
paper  may  be  less  than  six  weeks  prior  to  the  day  of  sale,^ 
and,  under  the  statute,'^  the  omission  of  the  sheriff  or  other 
officer  to  give  the  notice  of  sale  required  thereby,  or  the 
taking  down,  defacing  the  notices  when  put  up,  will  not 
affect  the  validity  of  auy  sale  made  to  a  purchaser  in  good 
faith,  without  notice  of  such  omission  or  offense.^ 

A  sheriff  advertising  land  for  sale  on  but  one  execution, 
cannot  proceed  to  sell  on  that,  and  also  on  another  execu- 
tion coming  to  his  hands  subsequently  to  such  advertise- 
ment. Having  advertised  on  but  one,  he  can  state  no 
other  in  his  certificate  or  deed  of  sale.  The  whole  sum 
bid,  however,  should  be  inserted,  that  the  debtor  or  a  cred- 
itor, coming  to  redeem,  may  know  the  auiount  to  be  paid, 
and  the  purchaser  may  be  secure  to  receive  the  amount  he 
has  paid.* 

The  sheriff  should  sell  no  more  real  estate  than  is  neces- 
sary to  satisfy  the  execution,^  and  when  such  estate  consists 
of  several  known  lots,  tracts  or  parcels,  they  must  be  sold 
separately ;  and  any  x^erson  claiming  to  be  the  owner  of 
them  or  any  of  them,  or  claiming  to  be  entitled  by  law  to 
redeem  any  such  portion,  may  require  of  the  sheriff',  that 
he  expose  such  portion  for  sale  separately.^  The  statute, 
in  this  provision,  is  held  to  be  directory  merely,®  and  a 
sale  in  violation  of  the  above  requirement,  is  voidable 
only  and  not  void.^ 

The  Code  provides,  that  real  property  adjudged  to  be  sold, 
must  be  sold  in  the  county  where  it  lies,  by  the  sheriff  of 
the  county  or  by  a  referee  appointed  by  the  court  for  that 
purpose,  &cJ  This  provision  hardly  seems  applicable  to 
sales  under  executions,  but  rather  to  sales  on  partition, 
foreclosure,  or  in  other  cases  where  the  order  of  sale  was 
a  part  of  the  determination  of  the  court. 


» Idem,  §  35.  *  2  R.  S.,  369,  §  38;  2  N.  T.  S.  at  L., 

»  Olcott  V.  Eobins,  21  N.  T.,  150.  383. 

»  2  R.  S.,  269,  §  40;  2  N.  Y.  S.  at  L.,  «  Cunningham  v.    Ca-ssidy,   17    N.   T., 

383;  13  N.  Y.,  189;  22  Barb.,  171.  276;   see  2  Paige,  54;  18  Johns., 

*  Mastcraft  v.    Van  Antwerp,   3  Cow.,  355;  13  How.,  555. 

334.  ■>  Code,  §  237,  last  clause. 


THE  EXECUTION.  S7 

Tlie  certificate  of  sale. 

The  title  of  land  sold  under  execution  is  not  vested  in 
the  purchaser  until  fifteen  months  after  the  sale,'  therefore 
the  sheriff  does  not  execute  his  deed  immediately  after  sale ; 
but  instead  thereof,  he  gives  to  the  purchaser  a  certificate 
of  the  sale  and  files  a  duplicate  of  the  same  in  the  office  of 
the  clerk  of  the  count}'  within  ten  days  after  such  sale, 
and  where  there  are  two  or  more  purchasers,  a  certificate 
must  be  delivered  to  each.^  It  is  the  duty  of  the  clerk  or 
register  of  the  county  receiving  such  duplicate,  immedi- 
ately to  record  the  same  in  a  book  provided  for  that  pur- 
pose, and  to  properly  index  the  same  in  the  name  of  the 
defendant  or  defendants  in  the  judgment,^  which  record, 
or  a  certified  copy  thereof,  is  made  evidence  of  the  facts 
therein  contained  in  all  courts,  &c.^ 

The  certificate  given  by  the  sheriff  must  contain  the 
following  particulars:  1.  A  particular  description  of  the 
premises  sold;  2.  The  price  bid  for  each  distinct  lot  or 
parcel;  3.  The  whole  consideration  money  paid;  4.  The 
time  when  such  sale  will  become  absolute.'*  An  omission 
to  file  this  certificate  of  sale  by  the  sheriff  will  not  preju- 
dice the  title  of  the  purchasers,  as  the  statute  requiring 
the  same  is  directory  merely.^ 

The  effect  of  the  sale. 

The  seizure  and  sale  of  the  defendant's  land  under  exe- 
cution does  not  divest  the  estate^ of  the  debtor  until  the 
purchase-money  is  paid  and  the'  deed  delivered.®  The 
certificate  of  sale  conveys  no  title,  but  the  debtor  is  still 
entitled  to  the  enjoyment  of  the  land  and  the  rents  and 
profits  thereof  until  the  time  of  redemption  has  expired.'^ 
But  though  the  debtor  is  entitled  to  the  possession  and 
enjoyment  of  the  land  during  the  fifteen  months  for  re- 
demption, j^et  he  will  be  liable  for  any  waste  committed 
by  him  after  the  sale.^  The  sale  under  the  judgment  con- 
verts the  general  lien  into  a  specific  one  to  the  amount  of 
the  bid  and  the  interest  thereon.^ 


*  2  R.  S.,  370,  §  45;  371,  §  50;  2  N.     *  CuUin  v.  Jackson,  8  Johns.,  520;  Cun- 

Y.  S.  at  L.,  384,  385.  ningham  v.  Cassidy,  17  N.  Y.,  279; 

«  2  R.  S..  370,  §^  42,  43.  see  17  How..  10;   15  Wend.,  260. 

»  L.  1857,  ch.  gV,  p.  93.  ''  20  Johns.,  3;  2  Wend.,  507 ;  4  Barb., 

*  2  R.  S.,  370,  §  42;   2  X.  Y.  S.  at  L.,            159;   17  Id.,  157. 

383.  *  3  Denio,  79;  14  N,  Y.,  474. 

*  Jackson  v.  Youn/f,  5  Cow.,  2G9.  *  11  Paigo,  71. 

II.— 8 


58  AD:vnNISTRATIOX  OF  CIVIL  JUSTICE. 

The  purchaser,  under  a  judgment,  acquires  all  the  right 
and  title  of  the  judgment  debtor  therein,  including  all 
covenants  and  estoppels  running  with  the  laud,^  but  if  that 
interest  terminates  before  he  is  entitled  to  the  enjoyment 
of  it — as  purchasing  the  title  of  a  tenant  from  year  to 
year — the  deed  from  the  sheriff  will  give  him  no  title  to 
the  premises.^  ISTor  will  the  purchaser,  under  an  execution, 
acquire  rights  which  are  merely  equitable  in  their  character ; 
as  such  cannot  be  sold  under  an  execution^ — as,  the  interest 
of  a  purchaser  under  an  executory  contract.* 

The  application  of  the  proceeds  of  the  sale. 

Where  the  oflScer  has  sold  the  premises  under  a  particu- 
lar execution,  he  may,  at  any  time  before  the  return  of 
the  process,  apply  the  proceeds  upon  another  execution 
which  he,  subsequent  to  the  sale,  discovers  to  be  prior  to 
that  under  which  he  sold.^  The  prior  execution  having 
been  constructively  levied,  the  sheriff  is  at  liberty  to  apply 
thereon  so  much  of  the  proceeds  of  the  sale  as  will  satisfy 
it."^ 

If  there  is  surplus  money  in  the  hands  of  the  sheriff 
after  paying  off  the  execution,  it  will  be  subject  to  the 
control  of  the  court,  and  a  junior  judgment  creditor  may 
obtain  an  order  for  the  payment  of  it  upon  his  execution,^ 
even  though  his  lien  had  expired.^  But  the  court  will  not 
interfere,  on  motion,  in  the  disposition  of  the  surplus 
money  in  the  sheriff''s  hands  when  the  rights  of  the  claim- 
ants are  not  clearly  ascertained.^ 

Where  other  judgment  creditors  have  liens  upon  the 
lands  sold  on  a  prior  execution,  their  liens  are  transferred  to 
the  surplus,  if  any  remains,  which  must  be  applied  to  them 
in  their  order  of  priority.^"  So  a  grantee  of  the  debtor  is 
entitled  to  the  surplus  in  preference  to  creditors  obtaining 
judgments  subsequent  to  the  grant.^^ 

Right  of  redemption. 

The  statute  has  provided  that  the  real  estate  sold  under 
execution,  or  any  district  lot,  tract  or  portion  thereof, 


*  1  Paige,  473 ;  4  Id.,  578.  °  Idem. 

«  17  Barb.,  394.  '  1  Wend.,  87. 

»  Garfidd  v.  Hatmfiker,  15  N.  Y.,  475.  »  18  Wend.,  628. 

*\1  Barb.,  394;  1  R.  S.,  744,  §  4;  1  «  5  Johns.,  163. 

N.  Y.  S.  at  L.,  696;  see  also  9  N.  "6  Barb.,  470;   I  Paige,  558. 

Y.,  49.  "  7  Weud.,  259. 

*  Peck  v.  Tiffany,  2  N.  Y.,  45 L 


THE  EXECUTION.  69 

which  may  have  been  separately  sold,  may  be  redeemed 
bj^  the  payment  to  the  purchaser,  his  personal  representa- 
tives, or  assignees,  or  to  the  officer  making  the  sale,  for 
the  use  of  such  purchaser,  of  the  sum  of  money  bid  on  the 
sale  of  such  lot  or  tract,  together  with  the  interest  on 
such  sum  from  the  time  of  sale  at  the  rate  of  ten  per  cent 
per  annum,  provided  such  payment  be  made  within  one 
year  from  such  sale.^  Leasehold  estates  or  terms  for  years 
and  chattel  interests  were  not  deemed  to  be  within  these 
I)rovisions  of  the  Revised  Statutes.^  But  by  the  amend- 
ment of  1837,^  when  the  lessee  or  assignee  of  leasehold 
property  has  an  unexpired  term  of  five  years  in  the 
premises  sold,  also  any  buildings  erected  thereon,  he  may 
redeem."*  The  five  years  unexpired  time  refers  to  five  years 
from  the  time  of  sale.^ 

This  right  may  be  exercised  by  the  person  against 
whom  the  execution  was  issued,  and  whose  right  and  title 
were  sold  in  piu-suance  thereof;  and  if  such  person  be 
dead,  then  by  his  devisee  of  the  premises  sold ;  and  if  the 
premises  shall  not  have  been  devised,  then  by  the  heirs  of 
such  person ;  or  by  the  grantee  of  such  person,  who  shall 
have  acquired  an  absolute  title  thereto  by  deed,  sale  under 
mortgage,  or  under  an  execution,  or  by  any  other  means.'' 
The  trustees  of  an  absent  debtor,  being  vested  with  all 
his  estate  by  the  statute,'^  are  entitled  to  redeem  his  real 
estate  from  sale  under  execution  within  one  year,"  and  in 
case  none  of  the  persons  so  entitled  to  redeem  the  premi- 
ses, shall  do  so  within  the  year,  then  any  creditor,  having 
in  his  own  name,  or  as  assignee,  trustee,  representative  or 
otherwise,  a  decree  in  chancery  or  judgment  at  law,  ren- 
dered at  any  time  before  the  expiration  of  fifteen  months 
from  the  time  of  such  sale,  or  having  a  mortgage  duly 
recorded  within  the  same  period,  and  which  shall  be  a  lien 
or  charge  upon  the  premises  sold,  or  upon  any  parcel 
thereof  which  shall  have  been  separately  sold,  may  acquire 
the  right  of  the  original  purchaser,  by  paying  the  sum  of 
money  which  was  i3aid  on  the  sale  of  such  premises  or 
upon  any  parcel  thereof  sold  separately,  together  with  the 


*  2  R.  S.,  370,  §  45 ;  2  N.  Y.  S.  at  L.,  '  1  Hill,  150. 

384.  *  Idem.  §  46. 

»  2  Cow.,  497;  19  Johns.,  73;  2  Wend.,  '  2  R.  S.,  15,  g  3;  and  41,  §  6. 

507.  «  15  Wend.,   248;   2  R.  S.,   370,  §  46j 
»  L.  18,^7,  cli.  4G2.  2  N.  S.  at  L.,  384. 

*  20  Wend.,  417. 


60  ADXIXISTRATION  OF  CIVIL  JUSTICE. 

interest  thereon,  at  the  rate  of  seven  per  cent  per  annum 
from  the  time  of  such  sale.^ 

The  creditor  acquiring  the  title  or  rights  of  the  original 
purchaser  is  liable  to  be  defeated  by  any  like  creditor  in 
the  following  manner :  The  latter  creditor  may  reimburse 
the  former,  or  his  personal  representatives  or  assigns,  by 
paying  the  sum  he  may  have  paid  to  the  original  i)ur- 
chaser,  with  seven  per  cent  interest ;  and  also  paying  to 
such  creditor  the  amount  of  any  prior  lien  he  may  have 
had  on  such  premises  at  the  time  he  acquired  the  title.^ 

In  the  same  manner  any  third  or  otlier  creditor  may,  in 
accordance  with  the  foregoing  provisions,  acquire  the  title 
of  the  original  purchaser,  from  the  second,  third,  or  any 
other  redeeming  creditor,  he  being  within,  and  complying 
•with,  the  foregoing  provisions.^  So,  likewise,  the  original 
purchaser  being  a  creditor  of  the  defendant  within  the 
foregoing  provisions,  may  acquire  the  title  of  any  pur- 
chaser, &e.* 

The  fact  that  the  judgment  of  the  redeeming  creditor 
•was  confessed  for  the  exi)ress  jmrpose  of  enabling  him  to 
redeem,  is  no  objection,  if  it  was  on  full  consideration,^ 
and  a  judgment  obtained  intermediate  the  sale  and  the 
time  fixed  for  redemption,  is  a  lien  within  the  law  author- 
izing redemption.'^ 

A  sale  under  a  judgment  for  less  than  its  amount,  and 
a  deed  to  the  purchaser,  extinguishes  its  lien  upon  the 
land,  so  that  such  judgment  creditor  cannot  redeem  from 
a  sale  under  a  senior  judgment.'  Nor  can  the  plaintiff  in 
an  execution,  under  which  the  land  was  sold,  redeem,  even 
though  the  purchase-money  was  wholly  applied  to  prior 
executions.  In  such  case,  he  should  have  withdrawn  his 
execution,  or  bid  higher.^  But  a  creditor  having  two 
judgments,  may  sell  on  the  junior,  and  redeem  under  the 
senior  judgment.^  The  statute  has  not  provided  for  the 
concmTent  redemption  by  several  judgment  creditors, 
holding  judgments  docketed  at  the  same  instant.^'' 


*  2  R.  S.,  371,  §  51 ;  2  N.  T.  S.  at  L.,  p.  385.  The  same  rights  are  also  extended 
to  a  creditor  by  mortgage  on  real  estate,  his  assignee  or  representative.  See  L. 
1856,  ch.  525,  §  1. 

'  2  R.  S.,  372,  §  55,  as  amended  by  L.  ■=  1  Cow.,  443 ;  Id.,  501:  7  Id.,  540. 

1847,  ch.  243,  §  2;  N.  Y.  S.  at  L.  '  8  Johns.,  333:  4  Cow!,  133. 

386.  *  4  Hill,  544.     See  also  20  "Wend.,  602; 

» Idem,  §  56.  2  N.  Y..  484;  10  Paige,  249. 

*  Idem,  §  57 ;  7  Cow.,  658.  "  4  Denio,  137  ;  2  N.  Y.,  484. 

*  2  Cow.,  518.  "  1  Hill,  639. 


THE  EXECUTION.  61 

Any  heir,  devisee  or  grantee,  having  acquired  title  to 
any  portion  of  the  premises,  or  to  any  separate  part  thereof, 
may  redeem  the  premises  as  if  he  were  tlie  grantee  of  the 
whole ;  and  has  his  remedy  for  contribution  against  the 
owners  of  the  residue  thereof.^  So  likewise  joint  tenants 
and  tenants  in  common  in  the  premises  sold,  or  in  any 
particular  lot  or  tract  thereof,  can  redeem  their  share  by 
paying  to  the  purchaser  or  officer  as  above  directed,  a 
sum  that  will  bear  the  same  proportion  to  the  whole  pur- 
chase-money bid  for  the  premises,  &c.,  as  the  share  pro- 
posed to  be  redeemed  bears  to  the  whole  number  of  shares 
in  such  premises,  with  interest  at  the  rate  of  ten  per  cent.^ 

But  the  right  to  redeem  is  ojily  co-extensive  with  the 
lien,  therefore  a  judgment  creditor  of  one  of  several 
tenants  in  common,  has  no  right  to  redeem  from  a  pur- 
chaser who  acquired  the  whole  estate.^ 

At  such  sale  by  the  sheriff,  a  person,  not  the  debtor, 
having  become  the  owner  of  the  land  which  is  subject  to 
the  judgment  lien,  may  become  the  purchaser  at  such  sale, 
and  acquire  a  title  under  it  which  will  not  merge  in  the 
title  he  previously  held,  consequently  in  such  case  another 
judgment  creditor  may,  under  the  statute,  redeem  or 
acquire  the  interest  of  such  purchaser,  and  thus  become 
entitled  to  the  sheriff's  deed.^ 

The  mode  of  acquiring  the  title  of  the  original  purchaser, 
or  of  redeeming  the  land  sold,  or  to  become  substituted 
as  a  purchaser  from  any  other  creditor,  is  to  present  and 
leave  with  such  purchaser,  or  creditor,  or  othcer  who  made 
the  sale,  as  the  case  may  be,  the  evidence  of  his  right  to 
redeem  or  be  substituted,  &c.,  which  is :  1.  A  copy  of  the 
docket  of  the  judgment  or  decree  under  which  he  claims 
the  right  to  purchase,  duly  certified  by  the  clerk  of  the 
court  or  of  the  county  in  which  the  same  is  docketed ;  or,  2. 
A  copy  of  the  mortgage  under  which  he  claims  the  right, 
duly  certified  by  the  clerk  of  the  county  where  it  is  regis- 
tered and  recorded ;  3.  A  verified  cojjy  of  all  assignments 
of  such  judgment  or  decree  so  far  as  they  are  necessary  to 
establish  his  claim ;  or,  4.  A  verified  copy  of  all  assign- 
ments, if  any,  of  the  mortgage  under  which  he  claims  his 
rights;  5.  An  affidavit  of  the  amount  due  on  such  judg- 
ment or  decree  at  the  time  of  claiming  such  right ;  or  of 


» Idem,  §  47.  *  19  Johns.,  379. 

"  Idem,  I  48.  *  19  N.  Y.,  369. 


62  ADMINISTRATION  OF   CIVIL  JUSTICE. 

the  true  amount  due  or  to  become  due  on  sucli  mortgage 
at  sucli  time,  over  and  above  all  payments.^ 

The  whole  bid,  with  interest,  must  be  paid  by  the 
redeeming  creditor  without  preference  to  priority  of  liens. 
If  his  judgment  is  intermediate  to  two  judgments  on  which 
the  land  is  sold,  and  it  was  sold  for  enough  to  pay  both, 
he  cannot  redeem  by  i^ayment  of  the  senior  judgment.' 

If  the  payment  to  redeem  be  short  through  the  mis- 
take or  miscalculation  of  the  sheriff,  it  will  not  affect  the 
redemption.^  But  it  is  otherwise  when  the  wrong  compu- 
tation is  made  by  the  party  himself,  or  his  agent,*  though 
a  slight  deficiency  of  a  few  cents  may  be  disregarded.^ 
And  when,  by  mistake,  as  to  the  sum  required  to  be  paid, 
the  redeeming  creditor  pays  to  the  sheriff  but  a  part  of 
that  which  is  required,  he  cannot  remedy  the  defect  by 
subsequently  paying  the  balance  and  taking  a  deed." 

And  if  there  are  other  matters  to  be  established  to  show 
the  right  of  the  applicant  to  redeem,  &c.,  then  such  other 
matters  are  to  be  set  forth  in  like  manner,  as,  when  an 
executor  or  administrator  applies  to  be  substituted,  &c., 
the  letters  of  administration  or  letters  testamentary  must 
also  be  proved  by  duly  authenticated  copies  thereof. 

The  affidavit  of  the  one  seeking  to  acquire  the  title 
must  state  positivelj^  the  amount  of  his  demand  in  such  a 
manner  that,  if  his  statement  be  false,  perjury  can  be 
assigned  thereon.  If  it  be  less  positive  than  this  it  will 
be  fatally  defective.'  Although  a  mere  error  in  stating 
the  amount,  if  made  in  good  faith,  will  not  invalidate  the 
affidavit.^  Xor  will  a  mistake  made  by  the  sheriff  in 
computing  the  amount  be  permitted  to  invalidate  the  pro- 
ceedings.^ 

The  person  seeking  to  acquire  the  title  of  the  land  sold, 
must  be  careful  that  all  copies  of  assignments,  &c.,  be 
dul.y  verified  by  the  oath  of  the  proper  person,  or  his  pro- 
ceedings will  be  defective.  Thus,  the  copy  assignment 
must  be  verified  by  the  i)arty  himself,  a  subscribing  wit- 
ness, or  by  some  person  who  saw  it  executed.^" 

The  statute  further  provides^^  that  all  redemptions  here- 


'  N.  Y.  S.  at  L.,  387,  §  60.  «  1  Denio.  272. 

'  7  Hill,  159:  1  How.,  77.  '  20  X.  Y.,  354. 

^  1  Cow.,  481 ;  7  Cow.,  540 ;  9  Barb.,     *  7  Barb.,  341. 

17;  3  Barb.  Ch.,  639;  1  Barb.  Cli.,     '  9  Barb.,  17. 

53.  "2N.  Y.,  484;    L.  1836,  cli.  325,  §  2. 

♦  1  Barb.  Ch.,  53.  »  L.  1847,  ch.  410,  §  3. 
'  9  Barb.,  17. 


THE  EXECUTION.  63 

after  made  for  any  creditor,  on  or  after  the  last  day  of  the 
fifteen  months,  shall  be  made  at  the  office  of  the  sheriff 
of  the  county  in  which  the  sale  took  place.  It  is  also 
made  the  duty  of  the  officer  making  the  sale?  to  attend  at 
said  office  during  the  last  day  for  making  such  redemp- 
tions, and  during  the  time  thereafter  in  which  such 
redemptions  may  be  made  ;  and  in  case  of  the  absence  of 
such  officer  from  such  office,  at  such  time,  then  the  redemp- 
tion may  be  made  to  the  sheriff,  and,  in  his  absence,  to 
the  under  sheriff,  or  any  deputy  present  at  such  office.^ 

The  payment  by  a  judgment  debtor,  for  the  purpose  of 
acquiring  the  rights  of  the  purchaser,  &c.,  to  the  county 
clerk,  who  had  no  special  deputation  for  that  purpose,  to 
act  in  the  sheriff's  behalf  in  receiving  money  for  the 
redemption  of  real  estate  sold  upon  execution,  is  of  no 
avail,  although  the  sheriff  has  no  other  office  than  that  of 
the  clerk,  and  is  not  present,  either  by  himself  or  deputy, 
to  receive  the  money .^  But  the  officer  selling  the  land 
has  authority  to  appoint  a  i)erson  his  agent,  to  compute 
and  receive  the  amount  required  on  redemption.^ 

The  sheriff  may  receive  payment  in  good  bank  bills,'* 
although  a  check  on  a  bank  is  not  good,  unless  presented 
and  paid  within  the  time  for  redeeming.  So  the  sheriff 
may  take  foreign  coin  at  their  current  value.^  So  he  may 
take  the  transfer  of  j)roperty  or  securities  to  which  ail 
parties  in  interest  are  agreed.^ 

If  the  redemption  be  made  prior  to  the  last  day  of  the 
fifteen  months,  the  officer  to  whom  it  is  made,  must 
immediately  tile  in  the  office  of  the  clerk  of  the  county 
a  statement  of  such  redemption,  which  shall  contain  the 
title  of  the  cause,  or,  in  case  of  mortgage,  the  parties 
thereto,  the  amount  of  the  judgment,  decree  or  mortgage, 
the  assignee,  representatives  or  trustees  thereof,  if  any, 
and  the  amount  paid  to  redeem,  the  time  when  the 
redemption  was  made,  and  the  sum  claimed  to  be  due 
upon  such  judgment,  decree  or  mortgage  at  the  time  of 
the  redemption." 

It  is  further  provided''  that  any  creditor  having  the  right 
to  redeem,  may  redeem  within  twenty-four  hours  after 
any  preceding  redemption  ;  and  that  no  deed  upon  any 


'  Laws  1847,  ch.  410,  §  3.  '4  Hill.,  613. 

'  15  N.  y.,  528.  "  2  How.,  117. 

'  9  Barb.,  17.  ^  Laws  1847,  ch.  410,  §  3. 

*  Idem.  •  Idem,  §  4. 


64  ADMINISTRATION  OF  CIVIL  JUSTICE. 

sale  or  redemption  shall  be  executed  until  after  the  lapse 
of  twenty-four  hours  after  the  last  redemption. 

It  is  also  made  the  duty  of  the  officer  making  such  sale, 
or  any  other  x)erson  lawfully  acting  in  his  behalf,  when- 
ever any  such  redemption  shall  be  made,  to  execute  to 
the  person  making  such  redemx)tion,  his  certificate,  truly 
stating  all  such  facts  transpiring  before  him  at  the  mak- 
ing of  such  redemption  as  shall  be  sufficient  to  show  the 
fact  of  such  redemption,^  which  certificate  being  proved  or 
acknowledged  as  deeds  are  required  to  be,  to  entitle  them 
to  be  recorded  in  the  clerk's  office  of  the  county  in  which 
the  real  estate  sold  is  situate,  is  to  have  the  effect  as 
against  subsequent  incumbrancers  and  purchasers  as  deeds 
and  conveyances  duly  proved  and  recorded,  to  be  proved 
in  courts  as  such  deeds  and  conveyances,  &c.,  are  proved.^ 

An  equitable  owner  of  real  estate  may  maintain  pro- 
ceedings to  set  aside  a  sale  as  fraudulent  during  the  time 
allowed  for  redemption,  as  the  sheriff's  certificate  is  a  cloud 
upon  such  title  f  or  such  owner  may  redeem  the  land  from 
the  effect  of  such  sale,  and  then  obtain  a  temx)orary  injunc- 
tion to  prevent  the  sheriff  paying  over  the  money  to  the 
purchaser  of  such  land  under  the  execution,  and  litigate 
with  such  purchaser  for  the  money  rather  than  for  the 
land.* 

Eedemption  by  the  debtor  will  continue  or  restore  the 
liens  of  a  junior  judgment,  even  where  the  sale  had  been 
had  under  such  junior  judgment,  but  which  was  over- 
reached in  the  application  of  the  jjroceeds  to  the  senior 
judgment.^  So  also  the  lien  of  a  junior  judgment  attaches 
when  the  land  has  been  sold  by  a  receiver  by  order  of  the 
court,  in  a  case  where  the  senior  judgment  creditor  filed  a 
creditor's  bill  to  set  aside  a  fraudulent  conveyance  of  the 
judgment  debtor,  procuring  a  receiver  to  be  appointed,  and 
a  conveyance  to  be  made  by  the  debtor  to  such  receiver, 
such  junior  judgment  creditor  not  being  a  party  to  such 
proceedings.^  The  principle  involved  is,  that  the  receiver 
only  conveys  the  title  he  received  from  the  judgment 
debtor,  which  -was  subject  to  the  lien  of  such  junior  judg- 
ment at  the  time  of  such  conveyance,  and  consequently 
such  junior  judgment  creditor  may  proceed  to  have  such 
lands  resold  to  satisfy  his  judgment.^ 

'  Idem,  §  5.  M  How.,  329;  see  also  16  N.  Y.,  567. 

"  Idem,  §  6.  »  18  N.  Y.,  347. 

«  18  N.  Y.,  516.  •  19  K  y.,  369. 


THE  EXECUTION.  65 

The  defendant  in  the  execution,  or  his  grantees,  &c.,  can- 
not redeem  after  the  year.*  The  day  of  the  sale  is  excluded 
in  computing  the  time  to  redeem.^  The  judgment  credi- 
tors whose  right  to  redeem  is  postponed  until  after  the  year, 
may  do  so  within  the  next  three  months,  or  within  fifteen 
months  from  the  day  of  sale ;  and  the  fifteen  months  al- 
lowed are  calendar  months,  not  hmar.^  And  when  the 
last  day  happens  on  Sunday  the  redemption  must  be  made 
the  day  before.*  If  the  day  of  sale  be  July  18,  1835,  the 
debtor's  year  will  expire  July  18,  1836,  and  the  creditor's 
fifteen  months  will  include  the  18th  of  October,  1836."  The 
hour  may  be  any  time  before  midnight  of  the  last  day.^ 

The  time  may  also  be  extended  by  a  valid  agreement 
made  in  good  faith,  between  the  judgment  debtor  and  the 
purchaser,  and  a  subsequent  judgment  creditor  will  be 
bound  by  such  agreement  made  prior  to  his  judgment. 
This  is  upon  the  principle  that  it  is  competent  for  the 
purchaser  to  release  his  interest,  which  is  that  which  alone 
is  redeemable." 

Where,  after  a  sale  of  land  upon  execution  by  a  sheriff, 
the  time  for  redemption  by  a  creditor  has  expired,  the  sale 
and  deed  by  the  sheriff  cut  off  all  judgment  liens  junior 
to  the  judgment  on  which  the  sale  was  had,  and  the  holder 
of  such  junior  liens  cannot  redeem  upon  a  subsequent  sale 
under  a  judgment  senior  to  the  one  on  which  the  first  sale 
was  made.^ 

So  where  there  were  five  judgments  which  were  suc- 
cessive liens  against  the  same  debtor,  and  his  lands  were 
sold  under  the  first,  second  and  fourth  for  a  sum  sufficient 
to  pay  the  first  two  and  part  of  the  fourth,  and  the  re- 
spective creditors  in  the  third  and  fifth  judgments,  in  order 
to  acquire  the  title  of  the  purchaser,  each  delivered  the 
proper  papers,  and  each  paid  the  amount  of  the  bid,  but 
neither  paid  the  other's  judgment,  it  was  held  that  the 
creditor  in  the  third  judgment  was  entitled  to  the  convey- 
ance.^ 

A  creditor,  by  redeeming,  takes  the  place  of  the  pur- 
chaser and  is  bound  to  extinguish  intermediate  liens  to 
protect  the  purchaser;  but  his  judgment  is  not  thereby 
satisfied.'" 

'  1  Cow.,  443.  •  1  Hill,  111. 

»  2  Cow.,  518.  '  4  N.  Y.,  544. 

»  Idem.  '  1  Denio,  633. 

*  1  Wend.,  42 ;  1  Cow.,  147.  •  2  N.  Y.,  484. 

•  19  Wend.,  87.  "  20  Wend.,  50;  8  Paige,  286. 

II.— 9 


66  ADMINISTRATION   OF   CIVIL  JUSTICE. 

On  redemption  by  the  debtor  or  his  grantees,  &^.,  within 
the  year,  the  certiticate  of  sale  becomes  void,  and  a  deed 
subsequently  executed  by  the  sheriif  is  inoperative.^ 

A  slight  variance  between  the  judgment  and  execution 
will  not  vitiate  the  title  of  the  purchaser;  in  fact,  any 
variance  which  might  be  amended,  as,  of  course,  should 
be  deemed  immaterial.^ 

The  sheriff' 's  deed  relates  back  to  the  time  of  sale  in 
favor  of  a  bona  fide  purchaser,^  especially  is  this  so  where 
there  are  no  rights  of  third  parties  to  be  aflfected  thereby  ;* 
although  it  is  held  that  under  the  act  of  1820,  the  sheriff's 
deed  takes  effect  from,  and  should  be  dated  at,  the  expira- 
tion of  the  time  to  redeem.^ 

The  deed  is  null  where  there  was  not  a  subsisting  power 
in  the  sheriff'  to  make  it  at  the  time  of  its  execution,*^  as 
where  it  had  been  redeemed,  &c.^  But  where  he  has  full 
power  to  make  the  deed,  and  he  executes  it,  and  it  is 
unambiguous,  it  is  conclusive"  and  cannot  be  contradicted 
in  its  averment  of  facts  by  parol  proof.  If  there  has  been 
any  irregularity  in  the  sale,  or  the  sheriff's  deed  be  untrue 
in  point  of  fact,  the  party  injured  has  his  remedy,  by 
motion,  in  court  or  by  bill." 

Sheriff^s  deed. 

By  ivliom  executed.  It  may  be  executed  by  his  deputy, 
in  the  name  and  on  behalf  of  the  sheriff.^  If  the  sheriff 
who  sold  the  real  estate  die  or  is  removed  from  office  be- 
fore executing  the  conveyance  in  pursuance  of  such  sale, 
such  conveyance  may  be  executed  by  his  undersheriff'  in 
the  same  manner  and  with  the  like  effect  as  if  done  by  the 
sheriffV"  and  if  there  is  no  undersheriff,  then  the  court 
from  which  the  execution  issued  may,  on  application  of 
the  plaintiff,  appoint  some  suitable  person  to  proceed  on 
such  execution  and  complete  the  same,  and  on  the  appli- 
cation of  any  person  entitled  to  a  conveyance,  the  court 
may  appoint  a  proper  person  to  execute  the  same,"  and 
there  being  no  money  to  be  collected  or  other  act  to  be 


'  15  Wend.,  248.  '  11  Wend.,  422;  12  Id..  248. 
»  4  Wend.,  462  ;  18  Johns.,  7  ;  8  Wend.,  *  1  Wend.,  83  :  11  Id.,  422. 

676;  4  Id.,  585.  »  10  .Johns.,  223;  12  id.,  162. 

'  15  Johns.,  309.  "  2  R.  S.,  374,  §  65 ;  2  N.  T.  S.  at  L., 

*  3  Cow.,  75.  308. 

'  20  Johns.,  3 ;  2  Wend.,  507.  "  Idem,  §  66. 

*  12  Barb.,  240. 


THE  EXECUTION.  67 

done,  security  will  not  be  required  of  tue  person  so  ap- 
pointed.^ 

Its  requisites. 

The  deed  must  specify,  with  certainty,  the  lands  sold 
and  to  whom  they  were  sold.-  The  descrijjtion  must  be 
such  that  the  land  sold  can  be  definitely  located  and  de- 
termined; and  where  the  description  of  the  premises  sold 
is  correct,  a  variance  between  it  and  the  certificate  will 
not  affect  the  purchaser's  title.^ 

It  need  not  recite  the  judgment  and  execution.  It  will 
be  sufficient  if  it  appears  that  the  judgment  and  execution 
were  the  authority  under  which  the  sheriff  acted.* 

Manner  of  enforcing  an  execution  for  the  delivery  of  possession  of 
real  or  personal  property . 

The  judgment  being  for  the  delivery  of  the  possession 
of  real  or  personal  property,  the  sheriff  is  required  to 
deliver  the  possession  of  the  same — particularly  describing 
it — to  the  party  entitled  thereto,  and  the  execution  at  the 
same  time  may  require  the  officer  to  satisfy  any  costs, 
damages  or  rents,  profits  recovered  by  the  same  judgment, 
out  of  the  i)ersonal  i^roperty  of  the  party  against  whom 
it  was  rendered,  and  the  value  of  the  property  for  which 
the  judgment  was  recovered,  to  be  specified  therein,  if  a 
delivery  thereof  cannot  be  had  ;  and  if  sufficient  personal 
property  cannot  be  found,  then  out  of  the  real  i)roperty 
belonging  to  him  on  the  day  when  the  judgment  was 
docketed,  or  at  any  time  thereafter.^ 

The  arrest  of  the  defendant. 

Where  the  action  is  one  in  which  the  defendant  might 
have  been  arrested  as  provided  by  the  Oode,^  an  execution 
may  issue  upon  the  judgment  recovered  therein  against  the 
person  of  the  judgment  debtor  to  any  county  within 
the  jurisdiction  of  the  court,  after  the  return  of  an  execu- 
tion against  his  property  unsatisfied,  in  whole  or  in  part."' 
But  in  such  case  no  execution  can  issue  against  the  per- 
son of  such  judgment  debtor,  unless  an  order  of  arrest 


'  10  Wend.,  562.  '  Code,  §  289,  4tli  clause. 

'  2  Jolins.,  248;  2  Cain,  Gl,  "  i^g  179,  181. 

»  4  Wend..  585.  ^  Code,  §  288. 

♦  4  Barb.,  180;  10  Johns.,  381 ;  5  Cow., 
529;   9  Id.,  182. 


68  ADMINISTRATION  OF   CIVIL  JUSTICE. 

has  been  served  as  provided  by  the  Code/  or  unless  the 
complaint  contains  a  statement  of  facts  showing  one  or 
more  of  the  causes  of  arrest  required  by  section  179  of  the 
Oode.^ 

Those  causes  of  action  referred  to,  where  a  statement 
of  facts  in  the  complaint  would  be  likely  to  show  a  cause  of 
arrest,  are:  1.  Where  the  action  is  for  an  injury  to  person 
or  character;  or,  2.  For  injuring  or  wrongfully  taking  or 
wrongfully  detaining  or  converting  property;  or,  3.  For 
a  fine  or  x>enalty;  or,  4.  On  a  promise  to  marrj'';  or, 
6.  For  money  received  or  property  embezzled  or  fraudu- 
lently misapplied  by  a  public  officer,  or  by  an  attorney, 
solicitor  or  counselor,  or  by  an  officer  or  agent  of  a  cor- 
poration or  banking  association,  in  the  course  of  his 
employment  as  such,  or  by  a  factor,  agent  or  broker  or 
other  person  in  a  fiduciary  capacity ;  or,  6.  For  any  mis- 
conduct or  neglect  in  olBce  or  in  a  professional  employ- 
ment ;  or,  7.  For  the  recovery  of  the  possession  of  personal 
property  unjustly  detained  when  the  property  or  any  part 
thereof  has  been  concealed,  removed  or  disposed  of  so  that 
it  cannot  be  found  or  taken  by  the  sheriff,  and  with  the 
intent  that  it  should  not  be  so  found  or  taken,  or  with 
the  intent  to  deprive  the  plaintiff  of  the  benefit  thereof; 
8.  Where  the  action  is  against  the  defendant  for  a  debt 
fraudulently  contracted,  or  for  the  taking,  detention  or  con- 
version of  property  fraudulently  concealed  or  disposed  of 
by  him.  In  other  cases,  where  the  cause  of  arrest  does 
not  appear  in  the  complaint,  an  order  of  arrest  must  have 
been  served  before  the  docketing  of  the  judgment  in  which 
the  execution  against  the  person  is  sought  to  be  obtained.^ 
Where  the  cause  of  action  is  so  stated  in  the  complaint 
that  there  could  have  been  a  recovery  without  finding  the 
facts  alleged  to  make  the  defendant  liable  to  arrest,  and 
there  is  a  general  finding  for  the  plaintiff,  an  execution 
cannot  issue  against  the  person  of  the  defendant ;  but  in 
such  a  case,  if  the  defendant  recover,  he  can  issue  an  exe- 
cution against  the  person  of  the  plaintiff  for  costs.^ 

Where  the  defendant  has  been  arrested  at  the  commence- 
ment of  the  suit  or  before  judgment,  the  plaintiff"  must 
proceed  within  a  reasonable  time  after  judgment  to  charge 
him  in  execution,  or  he  will  be  entitled  to  an  order  of 


'  Idem.,  §  183.  »  MiUer  v.  Scheider,  2  N.  Y.,  262. 

•Hoflf.  Bov.  Rem.,  103;  Code,.§  183. 


TE[B  EXECUTION.  69 

supersedeas}  The  statute  provides^  tliat  where  any  defend- 
ant, at  the  time  judgment  is  rendered  against  him  in  any 
court  of  record,  shall  be  in  custody,  either  upon  process 
or  by  surrender  of  bail  in  such  suit,  that  the  plaintiff  shall 
charge  him  in  execution  thereon  within  three  months  after 
the  last  daj^  of  the  next  term  following  that  at  which  such 
judgment  shall  have  been  obtained,  and  wheii  the  de- 
fendant shall  be  in  custody  upon  a  surrender  in  discharge 
of  bail  made  after  judgment  obtained  against  him,  and 
the  bail  are  discharged  or  exonerated,  that  the  plaintiff 
shall  then  charge  the  defendant  in  execution  thereon  within 
three  months  after  such  surrender,  or  if  an  execution 
against  property  has  been  issued,  then  within  three  months 
after  the  return  of  such  execution.^ 

The  plaintiff  neglecting  thus  to  charge  the  defendant  in 
execution,  the  defendant  may  be  discharged  bj'  supersedeas^ 
to  be  allowed  by  any  judge  of  the  court  in  which  such 
judgment  was  obtained,  unless  good  cause  can  be  shown 
why  he  should  not  be,  and  the  defendant  being  so  dis- 
charged, cannot  be  again  arrested  upon  an  execution  issued 
upon  such  judgment.^ 

77ie  order  for  arrest. 

An  execution  against  the  person  of  the  defendant  may 
be  issued  without  an  order  of  the  judge  in  all  causes  where 
the  right  to  the  same  is  apparent  upon  the  record.  But 
where  extrinsic  facts  are  to  be  established  to  the  satisfac- 
tion of  the  judge  before  such  right  is  manifest,  then  there 
must  be  a  proceeding  before  the  judge  to  obtain  the  proper 
order.  Where  the  plaintiff  has  inserted  in  his  complaint 
allegations  of  fact  not  strictly  necessary  to  establish  his 
right  of  action,  and  which  might  be  stricken  out  as  sur- 
X)lusage  on  motion  of  the  defendant,  if  such  allegations 
show  the  cause  of  action  to  be  one  entitling  the  plaintiff 
to  an  order  for  an  arrest  of  the  defendant,  it  would  be 
proper  for  the  defendant  to  move  to  have  such  allegations 
stricken  from  the  complaint;  and  oniitting  to  do  so,  after 
judgment  obtained  therein,  he  might  be  liable  to  arrest  in 
execution  without  an  order  for  that  jjurpose.'^  He  certainly 
would  be,  if  the  allegations  were  deemed  to  be  admitted 
by  the  pleadings  or  established  by  the  verdict  or  judgment. 

•  2  Abb.,  20.  *See  17  How.,  481:   12  Abb.,  430;  4 

»  2  11.  S.,  556;  2  N  Y.  S.  at  L.,  571.  Bosw.,  646;  18  How.,  469. 

/Idem,  §  37. 


70  ADMINISTEATION  OF   CIVIL  JUSTICE. 

But  if  the  facts  alleged  as  constituting  the  liability  of 
the  (lefendaut  to  arrest  were  negatived  by  the  verdict, 
although  the  plaintitf  recover  judgment,  an  execution 
against  the  person  of  the  defendant,  in  such  case,  could 
not  be  issued.^  So  when  the  allegations  are  merely  col- 
lateral, and  not  essential  to  the  plaintiif 's  cause  of  action, 
a  judgment  by  default  does  not  establish  such  collateral 
facts  sufticientiy  to  justify  the  issuing  an  execution  against 
the  person  of  the  defendant  without  an  order.^ 

It  has  been  held  that  an  execution  could  not  be  issued 
against  the  person  of  the  defendant  upon  the  judgment, 
in  an  action  of  ejectment,  even  though  the  action  were  for 
the  wrongful  withholding  of  the  property  therein  named.^ 
On  the  contrary,  it  has  also  been  held,  that  in  an  action  to 
recover  the  possession  of  real  property,  and  damages  for 
the  unlawful  withholding  of  the  same,  the  defendant  may 
be  arrested  and  held  to  bail.*  The  latter  decision  is  upon 
the  ground  that  the  action  of  ejectment  and  the  action  to 
recover  the  mesne  profits  are  substantially  actions  of  tres- 
pass for  unlawful  entries  upon  real  property ;  and  as  such 
the  defendant  is  liable  to  arrest  under  section  179  of  the 
Gode.^ 

In  cases  where  the  right  to  arrest  is  apparent  upon  the 
record,  if  the  plaintiff  fails  in  his  action  and  judgment  is 
entered  against  him  for  costs,  &c.,  he  will  also  be  liable  to 
arrest  on  execution  issued  on  such  judgment.^ 

The  question,  when  an  execution  might  issue  against 
the  person  of  the  defendant  without  an  order,  is  very  fully 
considered  in  the  case  of  Hinnplirei}  v.  Brown,'  by  Hoge- 
BOOM,  J.  He  lays  down  the  following :  "  An  execution 
may  issue  against  the  person  of  the  defendant  without  an 
order,  1.  Where  the  action  is  one  iu  which,  from  its  very 
nature,  and  from  the  facts  necessarily  stated  in  the  com- 
plaint as  the  cause  of  action,  the  j)laiutiff  would  neces- 
sarily have  been  entitled  to  an  order  of  arrest ;  2.  Where 
the  action  is  one  in  which  the  facts  entitlino-  the  plaintiff 
to  an  order  of  arrest  is  not  inherent  in  the  cause  of  action 
itself,  but  independent  thereof,  if  an  order  of  arrest  has 


'  3  E.  D.  Smitli,  1.  *  Idem,  68;  see  the  reasoning  of  Brown, 

"  17  How.,  481 ;  11  Abb.,  62  ;  4Bosw.,  J.,  in  this  case. 

627.  «  30  Barb.,  61 ;  2  N.  Y.,  262 ;  4  Sandf., 

'  18  Barb..  441;  10  How.,  37  655. 

*  30  Barb.,  61.  ^  17  How.,  481. 


THE  EXECUTION.  71 

been  in  fact  granted  and  enforced  ;^  3.  Where  the  right  to 
arrest  depends  upon  facts  extrinsic  to  the  cause  of  action, 
and  the  complaint  sets  out  acts  of  fraud,  such  as  would 
have  entitled  the  plaintiff  to  an  order  of  arrest,  aud  the 
defendant  has  not  answered  ;  4.  In  an  action  upon  a  fraud, 
and  the  fraud  is  established  on  the  trial,  and  the  fact  is 
incorporated  in  the  decisiou  of  the  court  and  made  a  part 
of  the  record  ;  5.  Where  an  order  of  arrest  in  the  action  is 
made  and  submitted  to  by  the  defendant ;  or  where,  upon 
controversy,  it  is  adjudged  to  be  proper." 

He  held  that  an  order  of  arrest  would  be  necessary  in 
the  following  cases :  1.  Where  it  does  not  appear,  by  the 
record,  that  the  case  is  one  which  necessarily  justifies  an 
arrest,  unless  an  order  were  previously  granted;  2,  Where 
no  facts  justifying  an  arrest  are  stated  in  the  complaint, 
and  no  order  of  arrest  is  made ;  3.  Where  the  facts  justi- 
fying an  order  of  arrest  are  set  forth  in  the  complaint,  but 
are  extrinsic  of  the  cause  of  action  itself,  and  the  defend- 
ant suffers  default. 

It  is  further  held  that  where  the  right  to  hold  to  bail 
depends  upon  extrinsic  facts,  and  not  upon  the  nature  of 
the  cause  of  action  itself,  that  right  must  be  asserted  and 
enforced  before  judgment,  in  the  manner  prescribed  by 
the  Code ;  and  if  not  so  asserted  no  execution  against  the 
j)erson  of  the  defendant  can  be  issued  upon  the  judgment.^ 

As  the  provisions  of  the  Code  prohibiting  arrest  in  civil 
cases  do  not  apply  to  or  affect  the  act  abolishing  imprison- 
ment for  debt,  and  to  punish  fraudulent  debtors,^  the 
plaintiff  having  omitted  to  jjrocure  an  order  of  arrest  prior 
to  judgment  in  certain  cases,  where  the  facts  entitling  him 
to  such  an  order,  are  extrinsic  to  his  cause  of  action,  may 
still  obtain  his  warrant  of  arrest,  after  he  has  obtained  his 
judgment  or  decree,  under  the  provisions  of  the  act  known 
as  the  "  Stillwell  act."* 

Requisites  of  tJie  execution  against  the  person,  &c. 

As  a  prerequisite  to  an  execution  against  the  person  of 
the  defendant,  one  must  have  been  issued  against  his  pro- 
Ijerty,  and  returned  unsatistied  in  whole  or  in  part,  there- 
fore the  execution  against  the  body  should  show  upon  its 
face  that  such  prior  execution  has  been  properly  issued  and 

'  13  Abb.,  241,  and  note.  ^  L.  1861.  ch.  300,  §  1 ;  4  N.  Y.  S.  at 

»17    How.,    481;    18    How.,   469;    4  L.,  465. 

Abb.,  102.  *  Idem,  §  4. 


72  ADMINISTKATION   OF   CIVIL  JUSTICE. 

returned ;  and  failing  to  do  so,  it  is  liable  to  be  adjudged 
irregular,  and  to  be  set  aside.'  It  is  not  necessary  that  the 
statutory  period  of  sixty  days  for  the  return  of  the  execu- 
tion against  property  should  have  intervened  between  its 
issuing  and  return ;  a  hona  fide  return  within  that  period 
is  proper.^ 

In  general,  it  is  not  necessary  that  the  facts  rendering 
the  defendant  liable  to  arrest,  should  be  stated  in  the  exe- 
cution. It  will  be  sufficient  if  they  exist.  The  nature  of 
the  action  and  the  return  of  an  execution  against  property 
unsatisfied  is  sufficient.^  Further  than  this,  it  must  require 
the  sheriff  to  arrest  such  defendant  and  commit  him  to  the 
jail  of  the  county  until  he  shall  pay  the  judgment  or  be 
discharged  according  to  law,^  although  an  omission  in  the 
direction,  of  the  words  "or  be  discharged  according  to 
law,"  will  not  vitiate  the  process,^  and  the  execution  may, 
in  such  mere  formal  matters,  be  amended.  It  is  not  neces- 
sary that  the  execution  should  have  the  seal  of  the  court 
or  the  signature  of  the  clerk.'^ 

The  defendant  having  been  arrested  on  an  execution 
against  his  body  properly  issued,  he  may  be  discharged 
therefrom  by  paying  the  amount  for  which  he  is  charged 
in  execution ;  or  he  may  avail  himself  of  the  privilege 
extended  to  insolvent  debtors,  and  obtain  his  discharge 
under  the  provisions  of  the  insolvent  debtor's  act ;  or  he 
may  be  discharged  voluntarily  by  the  plaintiff  in  execu- 
tion— after  he  shall  have  been  in  custody  for  thirty  days — 
with  a  view  of  preserving  his  remedy  against  the  property 
of  the  defendant.' 

Committing  the  defendant  to  jail. 

It  is  a  part  of  the  command  of  the  execution  against 
the  person  of  the  defendant,  that  he  be  conmiitted  to  the 
jail  of  the  county  until  he  pay  the  sum  named  in  the  exe- 
cution, or  be  otherwise  discharged  according  to  law.  It 
therefore  becomes  the  duty  of  the  sheriff,  having  arrested 
the  defendant,  to  commit  him  to  jail  unless  he  pay  the 
demand  or  be  otherwise  legally  discharged ;  and  the 
sherift'  having  taken  the  defendant  into  custody,  becomes 


'  19  How.,  91 ;  9  Abb.,  220 ;  4  Bosw.,  *  Code,  §  289,  subd.  3. 

384.  '  9  N.  Y.,  208. 

'  5  Duer,  681.  »  Code,  §  286. 

'  9  N.  Y.,  208;  18  Barb.,  441.        '  L.  1857,  ch.  127. 


THE  EXECUTION.  73 

responsible  for  his  safe  keeping  until  he  is  legally  dis- 
charged. 

Jail  liberties. 

The  jail  liberties  are  considered  as  an  extension  of  the 
walls  of  the  prison,  and  a  confinement  of  the  debtor 
within  the  liberties  of  the  prison,  is  a  compliance  with  the 
requirements  of  the  execution,^  and  although  it  is  sufficient 
if  the  debtor  be  confined  on  the  liberties,  yet  the  sheriff  is 
not  bound  to  enlarge  his  confinement  beyond  the  prison 
walls,  unless  the  debtor  executes  to  him  a  bond  according 
to  the  provisions  of  the  statute  for  his  indemnity  in  case 
of  the  escape  of  the  debtor.  The  provisions  of  the  statute 
are,  that  every  person  who  shall  be  in  the  custody  of  the 
sheriff  of  any  county  by  virtue,  1.  Of  any  capias  ad  res- 
pondemlum ;  or,  2.  Of  any  execution  in  a  civil  action  ;  or, 
3.  By  virtue  of  any  attachment  for  the  non-payment  of 
costs  in  a  civil  action  ;  or,  4.  In  consequence  of  a  surrender 
in  exoneration  of  his  bail, — shall  be  entitled  to  the  liber- 
ties of  the  jail,  which  shall  have  been  established  in  such 
county  according  to  law,  upon  executing  a  bond  to  the 
sheriff  and  assigns  of  the  following  character  :^  1.  It 
shall  not  be  less  than  double  of  the  amount  of  the  sum  in 
which  the  sheriff  is  required  to  hold  the  defendant  to  bail, 
if  he  be  in  custody  on  mesne  process,  or  be  surrendered 
in  exoneration  of  his  bail  before  judgment  docketed 
against  him ;  2.  It  shall  not  be  less  than  double  the 
amount  directed  to  be  levied  by  the  execution  or  attach- 
ment, if  he  be  in  custody  upon  attachment  or  execution  ; 
3.  It  shall  not  be  less  than  double  the  amount  for  which 
judgment  shall  have  been  rendered  against  him  if  he  be 
surrendered  after  judgment  docketed,^  and  such  bond  shall 
be  conditioned  that  the  person,  so  in  custody  of  the  sheriff, 
shall  remain  a  true  and  faithful  prisoner,  and  shall  not  at 
any  time  or  in  any  manner,  escape  or  go  without  the 
limits,  and  boundaries  of  the  liberties  established  for  the 
jail  of  such  county,  until  discharged  by  duo  course  of 
law." 

This  bond  is  given  for  the  indemnity  of  the  sheriff,  and 
when  sufficient,  he  is  required  to  accept  it  and  grant  the 


'3  Johns.  Cas.,  73;  C  Johns.,  121;  2     'Idem,  §  41. 

2  P.  &  D.  Pr.,  395.  *  Idem.  §  42. 

•  2  R.  S.,  433,  §  40 ;  2  N.  Y.  S.  at  L., 

452. 

II.—  10 


74  ADMTNISTRATION  OF   CIVIL  JUSTICE. 

liberties  of  tlie  jail  to  the  debtor  ;^  but  not  until  sucb  lib- 
erties are  legally  defined  ;^  and  when  they  are  defined,  it 
is  the  duty  of  the  debtor  to  ascertain  their  boundaries  and 
observe  tliem.^  The  bond  being  merely  for  the  indemnity 
of  the  sheriff,  he  is  at  liberty  to  waive  the  bond  and  grant 
the  liberties  upon  his  own  responsibility."  So  if  the  sheriff, 
having  taken  any  such  bond,  shall  discover  that  any  surety 
to  the  same  is  insufiicieut,  he  may  commit  the  prisoner  to 
close  confinement  until  other  good  and  sufficient  sureties 
are  offered.^ 

The  liberties  of  the  jail  for  each  county  of  the  state, 
where  they  are  not  especially  defined  by  statute,  are  to  be 
designated  by  the  court  of  common  i)leas  of  such  county 
—  now  county  courts'' — and  may  be  altered  in  their  dis- 
cretion, not  oftener  than  once  in  three  years.'  They  are 
to  consist  of  a  reasonable  space  of  ground  adjacent  to  the 
jail,  laid  out  in  a  square  or  parallelogram  as  near  as  may 
be ;  but  any  stream  of  water,  canal  or  highway,  may  be 
adopted  as  an  exterior  line,  notwithstanding  the  same  may 
not  be  a  straight  line  or  be  at  right  angles  with  the  other 
exterior  lines  of  such  liberties,  they  are  not  to  exceed  five 
hundred  acres  in  extent;  a  minute  description  of  the 
boundaries  of  which  are  to  be  entered  on  the  minutes  of 
the  court,  with  their  extent;  and  such  boundaries  and 
limits  are  to  be  designated  by  monuments,  or  enclosures, 
or  posts,  or  other  visible  and  permanent  marks.^ 

For  the  i)urpose  of  making  known  the  liberties  of  the 
jail  a  copy  of  the  minutes  of  the  court — county  court — 
establishing  such  liberties,  and  of  the  minutes  making 
subsequent  alterations,  made  and  certified  by  the  clerk  of 
the  county,  must  be  delivered  to  the  keeper  of  the  jail; 
and  certified  copies  of  any  original  establishment  of  liber- 
ties, and  all  alterations  made  in  respect  thereto,  must  be, 
immediately  after  their  entiy  in  the  minutes  of  the  court, 
made  out  and  delivered  to  the  keeper  of  the  jail,  who 
must  keep  them  exposed  to  public  view  in  some  open  and 
public  part  of  such  jail;  and  the  jailor  is  required  to  ex- 
hibit the  same  to  every  person  admitted  to  such  liberties 


*  3  Jolins.  Gas.,  73;  2  Id.,  205.  =  L.  1851,  ch.  26,  §  1. 

'  5  Johus,.  89.  ''  2  R.  S.,  432,  §§  33,  34;  2  N.  Y.  S.  at 

^  7  Johns.,  168.  L.,  451. 

*  6  Johns.,  121:  3  Johns.  Gas..  73.  "  2  R.  S.,  433,  §  34;  2  N.  T.  S.  at  L., 

*  2  R.  S.,  434,  §  44  ;  2  N.  Y.  S.  at  L.,  451. 

453. 


THE   EXECUTION.  75 

at  the  time  of  his  executing  his  bond  for  that  purpose.' 
Should  there  be  any  uncertainty  as  to  the  limits  as  de- 
scribed in  the  map  or  survey  on  the  record,  the  reputed 
lunits  have  been  held  to  be  the  best  evidence  of  the  actual 
liberties.^ 

B}'  the  provisions  of  the  act  to  supi)ress  intemperance,^ 
it  is  declared  that  in  any  judgment  rendered  or  recovered 
on  any  bond  to  be  given  under  such  act,  or  for  any  penalty 
incurred  thereunder,  the  person  or  persons  against  whom 
such  judgment  shall  be  rendered  shall  not  be  entitled, 
under  any  execution  issued  on  such  judgment,  to  the 
liberties  of  the  jail,^ 

The  statute  provides  that  "all  prisoners  committed  to 
any  jail  upon  jjrocess  of  contempt,  or  committed  for  mis- 
conduct in  the  cases  prescribed  by  law,  except  on  attach- 
ments for  the  non-payment  of  costs,  shall  be  actually 
confined  and  detained  within  such  jail  until  they  shall 
be  from  thence  discharged  by  due  course  of  law,  or  shall  be 
removed  to  some  other  jail  or  place  of  confinement,  in  the 
cases  ijrovided  by  law ;  and  if  any  sheriff  or  keeper  of  a 
jail  shall  permit  or  suffer  any  prisoner  so  committed  to 
such  jail  to  go  or  be  at  large  out  of  his  prison,  except  by 
virtue  of  some  writ  of  luibeas  corpus  or  rule  of  court,  or 
in  such  other  case  as  may  be  provided  by  law,  he  shall  be 
liable  to  the  party  aggrieved  for  his  -damages  thereby  sus- 
tained, and  shall  be  deemed  guilty  of  a  misdemeanor.*  So 
also  if  any  prisoner  committed  to  any  jail  by  virtue  of  any 
capias  ad  respondendum  or  other  'mesne  process,  or  upon 
any  surrender  in  exoneration  of  his  bail,  made  either  before 
or  after  judgment  rendered,  shall  go  or  be  at  large  without 
the  limits  and  boundaries  of  such  jail  without  the  assent 
of  the  party  at  whose  suit  such  prisoner  shall  have  been 
committed,  the  same  shall  be  deemed  an  escape  of  such 
prisoner,  and  the  sheriff  having  charge  of  such  jail,  shall 
be  answerable'  therefor  to  the  party  in  an  action  of  trespass 
on  the  case,  to  the  extent  of  the  damage  sustained  by  liim.^ 

So,  also,  if  any  prisoner  committed  to  any  jail  in  execu- 
tion in  a  civil  action,  or  upon  attachment  for  the  non- 
payment of  costs,  shall  go  or  be  at  large  without  the 


»  2  R.  S.,  433,  §§  38,  39;  2  N  Y.  S.  at    *  2  B,.  S.,  437,  §  61;  2  N.  Y.  S.  at  L., 

L.,  452.  pp.  455,  456. 

"•?  Jolins.,  175.  'Idem,  §  62. 

»L.   1857,  ch.  G28;  4  N.  Y.  S.  at  L., 

40  (55),  §  32. 


76  ADMLNISTRATIOIT  OF  CIVIL  JUSTICE. 

boundaries  of  tlie  liberties  of  such  jail  without  the  assent 
of  the  party  at  whose  suit  such  prisoner  was  committed, 
the  same  shall  be  deemed  an  escape  of  such  prisoner,  and 
the  sheriff  having  charge  of  such  jail  shall  be  answerable 
therefor  to  such  party  for  the  debt,  damages  or  sum  of 
money  for  which  such  prisoner  was  committed,  to  be  re- 
covered by  an  action  of  debt.^ 

The  going  at  large  within  the  limits  of  the  liberties  of 
the  jail  by  any  prisoner  who  has  executed  a  bond  for  the 
limits,  or  by  one  who  would  be  entitled  to  the  liberties  of 
the  jail  upon  executing  such  bond,  is  not  to  be  deemed  an 
escape ;  but  going  beyond  such  limits  without  the  assent 
of  the  party  at  whose  suit  such  prisoner  is  in  custody,  is 
to  be  deemed  an  escape,  and  forfeiture  of  his  bond  for  the 
limits,  and  in  such  case  the  sheriff  may  pursue  after  and 
retake  the  prisoner  as  if  he  had  escaped  £'om  jail.^ 

Where  there  has  been  an  escape  the  sheriff  is  not  per- 
mitted to  allege  error  or  irregularity  as  an  excuse  therefor.^ 
Thus,  where  the  defendant  had  been  discharged  from  im- 
prisonment under  the  insolvent  law,  and  in  a  suit  on  the 
original  judgment  he  omitted  to  plead  his  discharge  and 
was  taken  in  execution  in  the  second  suit  and  escaped,  in 
an  action  against  the  sheriff  for  such  escape,  it  was  held 
that  he  could  not  set  up  such  former  discharge  as  an  excuse 
or  justification  therefor/  vSo  even  he  would  be  liable, 
though  the  debtor  were  improperly  discharged  by  the  order 
of  a  judge  or  commissioner  on  luibeas  corpus^ 

So  a  slight  departure  trom  the  limits  of  the  liberties  is 
an  escape  even  though  the  deviation  was  to  avoid  a  bank 
of  snow  in  the  ijath,^  or  where  the  debtor  departed  about 
sixteen  feet  from  the  limits  and  entered  an  office,  and  re- 
turned within  an  hour.^  So  also  an  escape  of  a  prisoner 
while  in  a  state  of  insanity  renders  the  sheriff  liable."  The 
creditor  in  his  action  against  the  sheriff,  must  show  his  judg- 
ment and  execution,  the  prisoner  taken,  jfnd  afterward, 
without  the  four  walls  of  the  prison.  The  sheriff  must 
then  justify  his  being  at  large  by  showing  the  liberties 
established  and  defined  according  to  law;  failing  in  this, 
his  defense  fails.' 

If  the  debtor  in  execution  leave  the  liberties  of  the  jail 
by  the  consent  of  the  judgment  creditor,  such  consent  will 

'  Idem,  §  63.  ■•  15  Johns.,  152. 

»  2  R.  S.,  434,  §  47 ;  2  N.  Y.  S.  at  L.,  *  5  Johns.,  89. 

453.  «  1  Paine,  295. 

•  15  Johns.,  152 ;  13  Id.,  378.  ''  5  Johns.,  96. 


THE   EXECUTION.  77 

not  only  excuse  the  escape  but  likewise  discharge  the  judg- 
ment. But  the  consent  must  be  given  prior  to  the  escape ; 
for  the  right  of  action  having  accrued  can  only  be  defeated 
by  a  release  under  seal,  or  an  agreement  for  a  valuable 
consideration.^  But  where  the  creditor,  after  an  escape, 
agreed  with  the  sheriff,  in  consideration  that  he  would  not 
retake  the  debtor,  that  he  would  not  sue  him  without  notice, 
and  a  reasonable  time  to  retake  the  debtor,  it  was  held 
to  be  a  valid  agreement,  and  that  the  creditor  could  not 
sue  without  such  notice.^ 

The  statute  further  provides  that  "in  every  action 
against  a  sheriff  or  other  officer,  for  the  escape  of  any 
prisoner,  the  defendant  may  plead  or  give  notice  that 
before  the  commencement  of  such  action,  such  prisoner 
voluntarily  returned  to  the  jail  from  which  he  had  escaped, 
or  to  the  liberties  thereof;  or  that  such  defendant  retook 
such  prisoner  and  had  him  within  the  jail  from  which  he 
had  escaped,  or  within  the  liberties  thereof,  before  the 
commencement  of  such  action,  and,  in  either  case,  that 
the  escape  was  made  without  the  consent  of  the  defend- 
ant.' ~ 

The  sheriff  permitting  a  voluntary  escape  cannot  retake 
the  prisoner  without  new  authority  from  the  plaintiff,*  nor 
will  the  voluntary  return  or  assent  of  the  prisoner  prevent 
the  sherift  's  liability  in  such  case,*  unless  the  plaintiff  does 
some  act,  showing  his  election  to  hold  the  debtor  on  the 
old  process.^ 

In  an  action  against  a  sheriff  for  an  escape  if  he  has 
neglected  to  return  and  file  the  execution,  and  has  refused 
to  produce  it  at  the  trial,  after  having  been  duly  notified  to 
do  so,  parol  evidence  is  admissible  to  show  the  issuing  of 
the  execution,  its  delivery  to  the  sheriff,  and  the  arrest 
of  the  party  upon  it.^  The  sheriff'  cannot  avail  himself  of 
his  neglect  of  duty  to  defeat  an  action  against  him  for  au 
escape.^ 

To  make  the  sheriff  liable  for  an  escape  not  voluntarily 
permitted,  the  action  against  him  must  have  been  com- 
menced before  the  recapture  of  the  prisoner,  or  before  his 
return  into  custody.     As  to  what  constitutes  a  commence- 


'  16  Johns.,  181 ;  1  Paine's,  290;  2  P.  *  2  Term  Rep.,  25;  2  Johns.  Cos.,  3:  15 

&  U.  Pr..  405.  Johns.,  25G. 

*  1  Cow.,  274.  '  15  Johns.,  256. 

»  2  R.  S.,  437,  §  64;  see  10  Johns.,  549,  "  13  Johns.,  529. 

563  ;  2  N.  Y.  S.  at  L.,  456 ;  6  Cow., 

132. 


78  ADMENISTKATION   OF   CIVIL   JUSTICE. 

meut  of  the  action  against  the  sheriff,  it  has  been  held 
that  the  issuing  and  service  of  the  process  on  Sunday- 
being  illegal  and  void,  both  by  common  law  and  statute, 
it  is  not  such  a  commencement  of  the  action  as  will  make 
the  sheriff  liable.^ 

The  writ  must  be  actually  delivered  to  the  coroner,  or 
left  at  his  oftice,  or  be  issued  and  sent  to  him  with  the 
absolute  and  unequivocal  intention  to  commence  the  suit 
while  the  prisoner  is  off'  the  liberties.  It  is  not  sufhcient 
to  hand  the  writ  to  a  person  with  instructions  to  go  and 
see  the  prisoner  off  the  limits,  and  then  to  deliver  the  writ 
to  the  coroner.^  But  it  will  be  sufficient  if  the  writ  is 
delivered  to  the  coroner's  wife  at  his  dwelling  house,  in 
his  absence,  while  the  prisoner  is  beyond  the  limits.^ 

Where  the  sheriff  becomes  liable  for  an  escape  from  the 
limits,  if  the  creditor  is  willing  to  take  the  bond  executed 
to  the  sheriff  by  the  debtor  and  his  sureties,  he  can  take 
an  assignment  thereof,  and  prosecute  the  same.*  But  if 
he  refuse  to  do  so,  and  prosecute  the  sheriff'  for  such 
escape,  the  court  in  which  such  action  shall  be  pending  is 
required  by  rule  to  stay  all  proceedings  against  the  sheriff, 
until  he  shall, have  had  a  reasonable  time  to  prosecute  the 
bond  taken  by  him,  and  to  collect  the  amount  of  any 
judgment  recovered  thereon.^  But  the  above  does  not 
apply  to  cases  of  voluntary  escapes  by  the  sheriff.*^ 

When  the  defendants  are  sued  by  the  sheriff  on  their 
bond  for  the  limits,  they  are  permitted  to  plead  a  volun- 
tary return  of  the  prisoner  to  the  jail  from  which  he  escaped 
or  to  the  liberties  thereof,  or  the  recapture  of  the  prisoner 
by  the  sheriff  from  whose  custody  he  escaped  before  the 
commencement  of  such  action  ;  and  may  give  evidence 
thereof  in  bar  of  such  action ;  and  the  defendants  are 
likewise  i^ermitted  to  make  any  other  defense  to  such  suit 
which  might  be  made  by  the  sheriff,  to  an  action  against 
him  for  such  escape.^ 

When  the  action  is  commenced  against  the  sheriff  for 
such  escape,  he  may  notify  the  defendant  and  his  sureties, 
who  executed  the  bond  for  the  jail  liberties,  of  the  com- 
mencement of  such  action  for  such  escape,  to  enable  them 


»  1  R.  S.,  675 ;  12  Johns.,  178.  *  2  R.  S.,  436,  §  59 ;  2  N.  T.  S.  at  L. 

"  18  Johns.,  496  ;  4  Cow.,  158.  455. 

=  17  Johns.,  63.  « Idem,  §  60. 

*  2  R.  S.,  436,  §  55;  2  N.  Y.  S.  at  L.,  ''  2  R.  S.,  435,  §  48;  2  N.  Y.  S.  at  L., 

454.  453. 


THE   EXECUTION.  79 

to  (Jefend  the  same  ;  in  wliich  case  the  judgment  against 
the  sheriff  becomes  conchisive  evidence  of  his  right  to 
recover  against  the  prisoner  and  his  sureties,  to  whom  such 
notice  was  given,  in  the  action  on  such  bond,  as  to  all 
matters  which  were  or  might  have  been  controverted  in 
the  action  against  the  sherifi'.^ 

In  the  action  brought  by  the  sheriif  on  such  bond,  if  it 
appear  to  the  court  that  judgment  has  been  rendered 
against  the  sheriff  for  the  escape  of  the  prisoner,  and  that 
due  notice  of  the  pendency  of  the  action  against  the  sheriff 
had  been  given  to  the  prisoner  and  his  sureties,  to  enable 
them  to  defend  the  same,  the  court  is  required  to  render 
judgment  in  the  suit  on  such  bond  at  the  same  term  in . 
which  the  writ  by  such  action  shall  be  commenced,  and 
be  returned  served,^  provided  the  sheriff  shall  have  tiled 
his  declaration  and  prove  to  the  court  that  he  had  given 
the  defendants  twenty  days'  notice  of  the  motion  for  such 
judgment.^ 

But  if  on  the  hearing  of  such  motion  it  appear  that  the 
defendants  have  a  meritorious  cause  of  defense  which  was 
not  controverted  in  the  action  against  the  sheriff",  and 
which,  by  law,  could  not  have  been,  the  court  must  sus- 
pend the  proceedings  on  such  judgment  until  a  trial  in 
such  action  can  be  had ;  the  judgment  remaining  a  secu- 
rity for  the  sheriff,*  and  if  such  defense  is  established  the 
court  will  then  vacate  such  judgment,  and  render  judg- 
ment as  in  other  cases.^ 

In  every  action  brought  hj  the  sheriff  on  such  bond,  the 
recover}^  of  judgment  against  him  for  an  escape  of  the 
prisoner,  is  evidence  of  the  damages  sustained  by  him  in 
the  same  manner  as  if  such  judgment  had  been  collected, 
and  he  is  also  entitled  to  recover  the  costs  and  his  reason- 
able expenses  in  defending  the  suit  against  him,  as  part 
of  his  damages.'^ 

Discharge  under  the  insolvent  laws. 

There  are  two  methods  in  which  the  debtor  may  be 
discharged  from  imprisonment  in  civil  actions,  and"  yet 
leave  the  judgment  in  full  force  against  his  property  ;  and 
there  are  other  methods  by  which  he  is  wholly  discharged 


'Idem,  §  49.  "Idem,  §  52. 

'  Idem,  ^  50.  "  Idem,  |  53. 

» Idem,  g  51.  •  Idem,  §  54. 


80  ADMIOTSTRATION  OF  CIYTL  JUSTICE. 

from  liis  debts.  The  first  method,  by  which  he  is  only 
discharged  from  imprisonment,  is  as  follows :  The  insol- 
vent presents  his  petition  to  the  proper  officer,^  praying 
that  his  estate  may  be  assigned  for  the  benefit  of  all  his 
creditors,  and  that  his  person  may  thereafter  be  exempted 
from  arrest  or  imprisonment  by  reason  of  any  debts  arising 
upon  contracts  previously  made,  and  if  in  prison,  that  he 
may  be  discharged  from  such  imprisonment.^ 

On  liresenting  such  petition,  the  insolvent  miist  deliver 
therewith  a  schedule  containing  an  account  of  his  creditors 
and  their  jDlace  of  residence,  and  an  inventory  of  his  estate 
both  real  and  x^ersonal,  in  law  and  equity,  of  the  incum- 
brances existing  thereon,  and  of  all  books,  vouchers  and 
securities  relating  thereto,^  and  must  annex  to  such  peti- 
tion and  schedule  the  following  affidavit,  to  be  taken  and 
subscribed  before  the   officer  to  whom  such  petition  is 

presented :  "  I, ,  do  swear  (or  afiirm)  that  the 

account  of  my  creditors,  with  the  jjlaces  of  their  residence, 
and  the  inventory  of  my  estate,  with  the  evidences  of  my 
title  thereto  which  are  herewith  delivered,  are  in  all 
respects  just  and  true ;  and  that  I  have  not  at  any  time  or 
in  any  manner  whatsoever,  disposed  of,  or  made  over,  any 
part  of  my  estate  for  the  future  benefit  of  myself  or 
family,  or  in  order  to  defraud  any  of  my  creditors,  and 
that  I  have  not  paid,  or  secured  to  be  paid  to,  or  in  any 
way  compounded  with,  any  of  my  creditors,  with  a  view 
that  they  or  any  of  them  should  abstain  or  desist  from 
opposing  my  discharge."* 

Upon  receiving  such  petition,  schedule  and  affidavit, 
the  officer  must  make  an  order  requiring  the  creditors  of 
such  insolvent  to  show  cause,  before  such  oflicer,  at  a 
time  and  place  to  be  specified  therein,  why  the  prayer  of 
such  petitioner  should  not  be  granted.  Notice  of  the  con- 
tents of  such  order  must  be  published  once  in  a  week  for 
six  weeks  successively,  and  if  any  of  the  creditors  reside 
more  than  one  hunclred  miles  from  the  place  at  which 
they  are  required  to  show  cause,  the  notice  must  be  pub- 
lished once  in  a  week  for  ten  weeks  successively.^ 

Every  creditor  oj^posing  the  discharge  of  the  insolvent, 
may  demand  a  jury  to  determine  upon  the  matter,  and  is 


•  See  2  R.  S.,  34,  §  1 ;  2  K  Y.  S.  at  »  2  R.  S.  28,  §  2 ;  idem,  17,  §  5;   2  N. 

L.,    §  1,    as   to  what  oflBcer;  also,  Y.  S.  at  L.,  29;  2  idem,  18. 

idem,  28,  §  1.  «  2  R.  S.,  28,  §  2 ;  2  N.  Y.  S.  at  L.,  29. 

»  2  R.  S.,  §  1 ;  2  N.  Y.  S.  at  L.,  29.  » Idem,  §  4.  and  p.  9,  §  11. 


THE  EXECUTION.  81 

entitled  thereto  on  filing  with  the  oflScer  at  or  before  the, 
first  hearing-  on  such  petition,  a  specification  in  writing, 
of  the  grounds  of  his  objections.^  The  manner  of  drawing 
the  jury,  and  the  mode  of  trial  before  them,  is  particu- 
larly set  out  in  the  statute.^  The  debtor  himself  may  be 
examined  before  the  jury  or  the  ofiicer  as  provided  by 
law.^ 

If  the  jury  find  in  favor  of  the  petitioner,  or  if  there  be 
disagreement,  or  if  there  be  no  jury  required,  and  the 
ofiicer  is  satisfied  that  the  petitioner  is  unable  to  pay  his 
debts,  that  his  account  and  inventory  jjresented  with 
his  petition  are  true ;  that  he  has  not  been  guilty  of  any 
fraud  or  concealment  in  violation  of  these  i^rovisions, 
but  has  in  all  things  conformed  thereto,  then  the  otficer 
must  direct  an  assignment  to  be  made  to  an  assignee  or 
assignees  appointed  by  him,  of  all  the  estate  of  such 
debtor,  excepting  such  articles  as  are  exempted  from  exe- 
cution.* 

The  insolvent  producing  and  proving  a  certificate  of 
the  assignee,  and  of  the  county  clerk,  according  to  the 
provisions  of  the  statute,^  of  the  execution  and  recording 
of  such  assignment,  and  of  the  delivery  of  the  property 
assigned,  or  of  so  much  as  is  capable  of  delivery,  with  the 
books  and  papers  relating  to  the  same,  the  otficer  must 
grant  him  a  discharge  under  his  hand  and  seal,  forever 
exempting  him  from  imprisonment  by  reason  of  any  debt 
due  at  the  time  of  making  such  assignment,  or  contracted 
before  such  time  ;  and  by  reason  of  any  liabilities  incurred 
by  him,  by  making  or  indorsing  any  promissory  note  or 
bill  of  exchange,  or  incurred  by  him  in  consequence  of  the 
payment  by  any  party  to  such  note  or  bill,  of  the  whole 
or  any  part  of  the  money  secured  thereby,  &c.''  He  is 
also  to  be  discharged  from  imprisonment,  if  imprisoned  on 
any  such  liability,  by  exhibiting  his  certificate  of  dis- 
charge." 

The  discharge  is  to  be  void:  1.  Where  the  insolvent  has 
sworn  false  in  his  affidavit  annexed  to  his  petition,  or 
upon  his  examination,  in  relation  to  any  material  fact 
concerning  his  estate  or  his  debts,  or  to  any  other  mate- 


'  Idem,  §  5.  MR.  S.,  29,  §  8;  2  N.  Y.  S.  at  L, 
»2  R.   S.,  19,  §§  14,  15,  IG,  17,  18,  19;  80. 

2  N.  Y.  S.  at  L.,  19  and  20,  »  2  R.  R.,  21,  §  29 ;  2  N.  Y.  S.  at  L.,  22. 

»  2  R.  S.,  29,  §  7  ;  see,  also,  idem,  19,  "2  R.  S.,  30,  g  10 ;  2  N.  Y.  S.  at  L.,  30. 

§  20;  2  N.  Y.  S.  at  L.,  20  aud  30.  '  Idem,  §  11. 

II.— 11 


82  ADMINISTRATION   OF   CIVIL  JUSTICE. 

rial  fact ;  2.  Where,  after  the  presentation  of  his  petition, 
he  sells,  or  in  any  way  transfers  or  assigns,  any  of  his 
property,  or  collects  any  debts  dne  him,  withont  giving  a 
jnst  and  true  account  thereof  on  the  hearing  of  his  appli- 
catiou,  and  does  not  pay  or  secure  the  payment  of  the 
money  so  collected,  or  the  value  of  the  projjerty  assigned ; 
3.  AVhere  he  secretes  any  part  of  his  estate,  or  any  books 
or  writings  relative  thereto,  with  intent  to  defraud  his 
creditors  ;  4.  Where  he  fraudulently  conceals  the  names 
of  any  of  his  creditors  or  the  amount  due  any  of  them  ;  or, 
5.  Where  he  is  guilty  of  anj'^  fraud  whatever  in  procuring 
his  discharge.^ 

A  second  method  by  which  an  insolvent  may  become 
discharged  from  imprisonment  or  arrest  for  his  debt  is 
provided  for  those  who  are  actually  imprisoned  by  virtue 
of  one  or  more  executions  in  civil  causes  upon  which  there 
is  due  a  sum  not  exceeding  five  hundred  dollars.  The 
particular  manner  of  conducting  such  proceeding  is  de- 
scribed in  the  statutes,^  to  which  reference  is  made  for 
instruction  therein. 

In  connection  with  these  xiroceedings  provision  is  made 
to  prevent  a  debtor,  charged  in  execution  for  three  months, 
from  wasting  his  property  in  confinement.  The  object  of 
this  provision  is  to  compel  the  debtor  to  make  his  appli- 
cation for  a  discharge  within  a  reasonable  time  by  some 
of  the  methods  founded  by  statute,  or  to  be  precluded 
from  afterwards  obtaining  it.  Such  provisions  are  found 
in  the  Eevised  Statutes.^ 

The  methods  by  which  the  insolvent  may  be  wholly 
discharged  from  his  debts  are  too  lengthy  to  be  inserted 
herein.  They  will  be  found  in  detail  by  reference  to  the 
Revised  Statutes.^ 

'When  retumahle  and  by  vihom. 

The  execution  is  made  returnable  within  sixty  days  after 
its  receipt  by  the  oflflcer  to  the  clerk  with  w^hom  the  record 
of  judgment  is  filed.^  The  sheriff  is  entitled  to  the  full 
sixty  days  within  which  to  execute  his  writ,  and  cannot 
be  compelled  to  return  it  sooner.^    But  lie  is  at  liberty  to 


'  2  R.  S.,  30,  §  13;.  2  N.  Y.  S.  at  L..  =  2  R.  S.,  33,  §§  16,  17;  2  N.  Y.  S.  at 

31 ;  see  2  R.  S.,  23,  §  35  ;   2  N.  Y.  L.,  34. 

S.  at  L.,  24.  "  2  R.  S.,  16-28 ;  2  N.  Y.  S.  at  L.,  16-23. 

»  2  R.  S.,  31-35;  2  N.  Y.  S.  at  L.,  31-  ^  Code,  g  290. 

35.  ^  17  How.,  157 ;  9  Abb.,  382. 


THE  EXECUTION.  83 

return  it  sooner,  when  he  has  collected  the  debt,  or  has 
become  satislied  that  there  is  no  property  on  which  to 
levy  it.  But  he  must  act  in  good  faith,  if  his  return  is  to 
be  made  the  basis  of  other  proceedings  against  the  defend- 
ant or  his  property.^  The  propriety  of  a  short  return  can- 
not be  questioned  by  a  third  party,  but  the  question,  if 
raised  at  all,  must  be  upon  a  direct  application  by  the 
debtor  himself.^  If  the  sherifi'  delay  the  return  of  the 
execution  beyond  the  time  allowed  by  law,  he  may  be 
compelled  to  do  so  by  a  process  of  contempt.  The  method 
of  compelling  such  return,  is  for  the  party  aggrieved  to 
serve  on  the  officer  a  notice  to  return  the  execution  within 
ten  da^s,  or  show  cause  at  special  term  to  be  designated 
in  said  notice,  why  an  attachment  should  not  issue  against 
him.' 

His  return  should  be  according  to  the  facts  ;  if  he  has 
made  the  money  on  the  execution  in  whole  or  in  part,  he 
so  states  the  fact ;  if  he  could  not  find  property  whereon 
to  levy,  such  fact  is  also  stated  ;  if  he  has  levied  upon 
goods  which  remain  unsold  for  want  of  bidders,  he  returns 
such  fact. 

The  return  of  the  sheriff  may  be  amended  or  corrected 
by  leave  of  the  court.  The  supreme  court  has  power  to 
authorize  the  sheriff  to  withdraw  from  the  files  an  execu- 
tion, and  to  cancel  a  return  of  niiUa  bona  made  thereon. 
And  such  return,  thus  canceled  by  permission  of  the 
court,  will  not  estop  the  sheriff'  from  suing  for  a  conversion 
of  the  property  committed  before  the  return  was  made.* 
But  after  he  has  returned  as  satisfied,  or  nulla  bona,  the 
execution  under  which  he  levied,  he  has  no  longer  a 
right  to  a  return  of  the  property  in  a  replevin  action  in 
which  it  was  taken  from  him  after  the  levy.^  He  might, 
however,  obtain  leave  of  the  court  to  correct  his  return  if 
it  were  just  for  him  to  do  so.  The  court  may  also  compel 
a  correct  return,  whenever  the  legal  situation  of  the  parties 
require  it.*' 

The  slieriff"  is  required  to  execute  and  return  the  execu- 
tion upon  his  own  responsibility,  and  the  court  is  not 
bound  to  give  him  directions  in  respect  to  his  duty.'^    But 


See  15  How.,  410;  18  Id.,  33;  17  Id.,  M4  N.  Y.,  270. 

157.  '  2  How.,  51. 

33  Barb.,  327.  "  2  Duor,  G45. 

Rule  8;  see  also  2  R.  S.,  440,  §  77 ;  '4  Diier,  676;  2  Abb.,  101. 

2  N.  Y.  S.  at  L.,  459. 


84  ADMINISTRATION  OF  CIVIL  JUSTICE. 

"where  the  plaintiff  or  his  attorney  interferes  with  the  pro- 
ceedings of  the  sheriff  in  the  execution  of  such  process,  any 
dehiy  or  loss  occasioned  by  such  interference  will  not  be 
charged  to  the  sheriff"/  bnt  in  such  case  the  sheriff  must 
have  pursued  the  directions  given  or  he  will  not  be 
exonerated.^ 

The  return  must  be  made  by  the  sheriff",  or  in  his  name. 
A  return  by  a  deputy  sheriff"  in  his  own  name  is  not  suffi- 
cient." It  is  his  duty  to  see  that  the  execution,  with  the 
return  properly  indorsed,  is  filed  with  the  clerk  of  the  pro- 
per court,  and  he  may,  if  he  chooses,  return  the  money  col- 
lected to  such  clerk  instead  of  paying  it  over  to  the  party. 

The  manuner  of  executing  judgments  and  decrees  when 
they  require  the  performance  of  other  acts  than  the  pay- 
ment of  money,  will  be  considered  in  the  chapter  upon 
punishment  as  for  contempt. 

Tlie  manner  of  compelling  a  return  thereof. 

At  any  time  after  the  day  when  it  is  the  duty  of  the 
Bheriff",  or  other  officer  to  return,  deliver  or  file  any  process, 
undertaking,  order  or  other  paper,  by  the  provisions  of  the 
Code,  any  party  entitled  to  have  such  act  done  may  serve 
on  the  officer  a  notice  to  return,  deliver  or  file  such  pro- 
cess, undertaking,  order  or  other  paper,  within  i^w  days, 
or  show  cause,  at  a  special  term  to  be  designated  in  said 
notice,  why  an  attachment  should  not  issue  against  him.* 

Tlie  execution  of  a  judgment  in  the  nature  of  a  dea-ee^  or  order. 

When  a  judgment  requires  the  performance  of  any 
other  act  than  the  payment  of  money,  a  certified  copy  of 
the  judgment  may  be  served  upon  the  party  against  whom 
it  is  given,  or  the  person  or  officer  who  is  required  thereby, 
or  by  law,  to  obey  the  same,  and  his  obedience  thereto 
enforced.  If  he  refuse,  he  may  be  punished  by  the  court 
as  for  a  contempt.^  The  Code  prescribing  no  special 
course  of  proceedings  in  cases  of  this  character,  the  i)rac- 
titioner  will  necessarily  have  recourse  to  the  statutes  for 
instruction.''  The  further  consideration  of  this  subject  will 
be  postponed  to  the  chapter  on  contempts. 


»  24  Barb.,  278.  ♦  Code,  Rule  8,  Aug..  1858. 

'ION.  Y.,  398.  *  Code,  §285. 

•  2  Gai.,  61.  •  2  R.  S.,"534  to  541 :  2  N.Y.  S.  at  L.,  552. 


SUPPLEMENTARY  TO  THE  EXECUTION.  85 


CHAPTER  IV. 

i 
PROCEEDINGS  SUPPLEMENTARY  TO  THE  EXECUTION. 

The  plaintiff  having  exhausted  the  means  given  him  by 
execution  to  satisfy  his  judgment,  without  complete  suc- 
cess, is  authorized  to  institute  sui)plementary  i^roceediugs 
before  a  judge,  requiring  the  judgment  debtor  to  appear 
before  such  judge  and  answer  respecting  his  property. 
The  Code^  provides  that  when  an  execution  against  pro- 
perty of  the  judgment  debtor,  or  any  one  of  several  debtors 
in  the  same  judgment,  issued  to  the- sheriff  of  the  county 
where  he  resides,  or  has  a  place  of  business,  or  if  the 
debtor  do  not  reside  in  the  state,  then  to  the  sheriff  of  the 
county  where  a  judgment  roll,  or  a  transcript  of  a  justice's 
judgment  for  twenty-five  dollars  or  upwards,  exclusive  of 
costs,  is  filed,  is  returned  unsatisfied  in  whole  or  in  part, 
the  judgment  creditor,  at  any  time  after  such  return 
made,  is  entitled  to  an  order  from  a  judge  of  the  court,  or 
a  county  judge  of  the  countj*  to  which  the  execution  was 
issued,  or  a  judge  of  the  court  of  common  pleas  for  the 
city  and  county  of  New  York,  where  execution  was  issued 
to  such  city  and  county,  requiring  such  judgment  debtor 
to  appear  and  answer  concerning  his  property  before  such 
judge,  at  a  time  and  place  specified  in  the  order,  within 
the  county  to  which  the  execution  was  issued. 

That  after  the  issuing  of  an  execution  against  x)roperty, 
and  upon  proof  by  affidavit  of  a  party  or  otherwise,  to  the 
satisfaction  of  the  court,  or  a  judge  thereof,  or  a  county 
judge,  or  any  judge  of  the  court  of  common  i)leas  for  the 
city  and  county  of  Kew  York,  that  any  judgment  debtor 
residing  in  the  county  where  such  judge  or  ofiicer  resides, 
has  property  which  he  unjustly  refuses  to  ap])h'  towards 
the  satisfaction  of  the  judgment,  such  court  or  judge  may, 
by  an  order,  require  the  judgment  debtor  to  appear  at  a 
specified  time  and  place  to  answer  concerning  the  same ; 
and  such  proceedings  may  thereupon  be  had  for  the  appli- 
cation of  the  i)roperty  of  the  judgment  debtor  towards 
the  satisfaction  of  the  judgment,  as  are  xn'ovided  upon  tho 
return  of  an  execution.     And  whenever  it  is  made   to 

>  §  292. 


66  ADMINISTRATION  OF  CIVIL  JUSTICE. 

appear,  by  affidavit,  to  a  justice  of  the  supreme  court,  that 
such  comity  judge  or  judge  of  said  court  is  incapacitated 
from  acting  iu  any  of  the  proceedings  whatever  herein 
authorized,  from  any  cause  or  causes  whatsoever,  such 
justice  of  the  supreme  court  shall  have  the  same  power 
and  authority  in  all  cases  whatever,  as  are  hereby  conferred 
on  him  as  to  cases  of  judgments  in  the  supreme  court. 

That  on  an  examination  under  this  section,  either  party 
may  examine  witnesses  in  his  behalf,  and  the  judgment 
debtor  may  be  examined  in  the  same  manner  as  a  witness. 

That  instead  of  the  order  requiring  the  attendance  of 
the  judgment  debtor,  the  judge  may  issue  a  warrant  upon 
proof  by  affidavit  or  otherwise  to  his  satisfaction,  that 
there  is  danger  of  the  debtor's  leaving  the  state,  or  con- 
cealing himself,  and  that  there  is  reason  to  believe  he  has 
property  which  he  unjustly  refuses  to  apply  to  such  judg- 
ment, which  warrant  shall  require  the  sheriff  of  any  county 
where  the  debtor  may  be  to  arrest  him  and  bring  him 
before  such  judge.  That  upon  being  brought  before  such 
judge,  he  may  be  examined  upon  oath,  and  if  it  then 
appear  that  there  is  danger  of  the  debtor  leaving  the 
state,  and  that  he  has  property  which  he  has  unjustly 
refused  to  apply  to  such  judgment,  he  may  be  ordered  to 
enter  into  an  undertaking,  with  one  or  more  sureties,  that 
he  will,  from  time  to  time,  attend  before  the  judge  as  he 
shall  direct,  and  that  he  will  not,  during  the  pendency  of 
the  fjroceedings,  dispose  of  any  portion  of  his  property  not 
exempt  from  execution ;  and,  in  default  of  entering  into 
such  imdertaking,  he  may  be  committed  to  prison,  by  war- 
rant of  the  judge,  as  for  a  contempt. 

That  no  person  thus  examined  shall  be  excused  from 
answering  any  question  on  the  ground  that  his  examina- 
tion will  tend  to  convict  him  of  the  commission  of  a  fraud.^ 
Kor  shall  he  be  excused  from  answering  any  question  on 
the  ground  that  he  has,  before  the  examination,  executed 
any  conveyance,  assignment  or  transfer  of  his  property 
for  any  purpose.  But  his  answer  shall  not  be  used  as 
evidence  against  him  iu  any  criminal  ijroceediug  or  i)rose- 
cution.^ 

Before  whom  these  proceedings  may  he  instituted. 

Generally,  under  the  provisions  of  this  section  of  the 
Code,  the  proceedings  are  instituted  before  a  judge,  and 

»  Code,  §  292. 


SUPPLEMENTARY   TO   THE   EXECUTION.  87 

not  before  the  court  as  siich.^  Although,  under  the  pro- 
vision for  an  examination  of  the  judgment  debtor  respect- 
ing property  which  he  unjustly  refuses  to  apply  toward 
the  satisfaction  of  the  judgment,  the  court  or  judge  may 
make  the  order  requiring  him  to  appear  at  a  specified 
time  and  place,  to  answer  concerning  the  sanie.^  But,  ifc 
is  held  that  in  the  ordinary  proceedings  under  this  chapter, 
the  authority  is  personal,  and  is  vested  in  the  judge  before 
whom  the  proceeding  is  originally  commenced.  That  the 
authority  being  statutory,  the  provisions  of  the  statute 
must  be  strictly  observed.^  Hence,  it  was  held,  that  a 
motion  made  and  decided  at  special  term  that  an  attach- 
ment issue  against  the  defendant  for  neglecting  to  deliver 
his  property  to  a  receiver,  appointed  in  such  i)roceedings, 
should  have  been  made  before  a  judge  out  of  court,  as  the 
court  had  no  jurisdiction  to  make  such  an  order.* 

After  the  proceedings  have  been  duly  instituted,  the 
jurisdiction  of  the  judge  remains  until  the  examination 
of  the  debtor  is  completed,  and  all  orders  made  by  the 
judge  in  respect  to  the  property  of  the  judgment  debtor, 
are  fully  executed,^  So  when  he  makes  an  order  appoint- 
ing a  referee  to  examine  as  to  the  property  of  the  judg- 
ment debtor,'^  he  is  the  one  to  whom  the  referee  must 
certify  his  examination.^ 

The  law,  however,  as  applicable  to  the  first  judicial 
district,  is  held  to  be  difterent.  By  the  Code,''  every  pro- 
ceeding, in  that  district,  commenced  before  one  of  the 
judges  of  said  court,  may  be  continued  before  another  of 
the  judges  in  said  district.  Under  this  provision  it  has 
been  held,  that  a  proceeding  commenced  in  said  district 
by  a  judge  competent  to  institute  it  therein,  may  be  con- 
tinued in  such  district,  before  any  other  judge  competent 
to  have  commenced  it.^  But  the  power  to  punish  a  party 
for  disobeditnice  of  an  order  of  the  judge  is  given  to  the 
judge  and  not  to  the  court,'"  and  the  attachment  in  such 
case  should  be  made  returnable  before  the  judge  and  not 
before  tlie  court,^"  and  being  returned  before  the  court  the 
defendant  would,  necessarily,  be  discharged  from  custody." 


*  Miller  v.  Rossman,  15  How.,  10.  °  Code,  §  209. 

'Code,  §  292,  sub.  2;   17  How.,  80.  '  Smith   v.   Johnson,    7    How.,    39;    6 
"Belling  v.  Vandenburyh,  17   How.,  80;  Id.,  ;550. 

Webber  v.  Ilobbie,  13  How.,  382.  '  §  27. 

*  Idem;  see  also  13  How.,  173.  °  Dresser  v.  Van  Pelt,  15  How.,  19. 

*  13  How.,  382.  ■"  Shepherd  v.  Dean,  13  How.,  173. 


88  ADMINISTRATION   OF   CIVIL  JUSTICE. 

By  the  provisions  of  the  Code,  a  county  judge  of  the 
county  to  which  an  execution  is  issued  is  authorized  to 
take  cognizance  of  these  proceedings  ;  consequently,  it  has 
been  held  that  all  officers  invested  by  statute  with  the 
powers  of  a  county  judge  may  exercise  jurisdiction  in 
these  cases.^  Hence,  the  recorder  of  the  city  of  Troy  has 
jurisdiction  in  supplementary  proceedings.^  So  also  has  the 
recorder  of  Oswego,  &c. 

But  proceedings  supplementary  to  execution  are  held  to 
be,  in  no  sense,  identical  with  the  ordinary  chamber  busi- 
ness, but  are  of  a  special  and  higher  nature — a  substitute 
for  an  action  in  chancery.  Hence,  the  court  held,  that  an 
officer,  merely  invested  with  the  powers  of  a  judge  of  the 
supreme  court  at  chambers,  is  not  thereby  vested  with 
jurisdiction  over  proceedings  supplemental  to  executions  ; 
and  that  the  city  judge  of  Brooklyn  had  no  such  jurisdic- 
tion to  entertain  these  prceedings  on  a  judgment  of  the 
supreme  court.^ 

A  judge  of  the  supreme  court,  as  such  merely,  has  no 
jurisdiction  over  proceedings  under  the  judgment  of  the 
county  court,  or  of  the  New  York  court  of  common  pleas,' 
except  when  it  is  made  to  appear  by  affidavit,  to  the  satis- 
faction of  the  justice  of  the  supreme  court,  that  such 
county  judge  or  judge  of  the  court  of  common  pleas  is 
incapacitated  from  acting  in  any  of  the  proceedings  what- 
ever, authorized  b}^  such  provision  of  the  Code,  in  which 
case  such  justice  of  the  supreme  court  obtains  the  same 
power  and  authority  in  all  cases  as  if  the  same  was  a  pro- 
ceeding under  a  judgment  in  the  supreme  court.* 

The  nature  of  the  proceeding. 
The  supplementary  proceeding  is  a  proceeding  in  the 
action,  rather  than  a  new  or  original  one,  or  a  "special 
proceeding,"^  although,  in  respect  to  remedies  provided 
against  third  persons  not  parties  to  the  suit,  it  partakes 
somewhat  of  the  nature  of  a  special  proceeding.  In  many 
respects  these  proceedings  are  a  substitute  for  the  old 
mode  of  proceeding  by  creditor's  bill  under  the  statute, 
and  it  has  been  held  that  the  rules  settled  in  reference  to 
the  proceedings  under  tliese  bills,  may  be  regarded  as 


*  Hayner  v.  James,  17  N.  Y.,  316.  *  Code,  §  292. 

*  13  How.,  495.  '  Bank  of  Genessee  v.  Spencer. 

*  1  Code  R.,  79,  note. 


SUPPLEMENTAEY  TO  THE  EXECUTION.  89 

controlling,  when  not  altered  by  the  Code,  or  the  practice 
under  it.^ 

The  supplementary  proceedings  of  the  Code  are  de- 
signed more  particularly  for  reaching  the  property  of  the 
judgment  debtor,  where  there  is  no  dispute  as  to  the  title, 
and  where  nothing  is  required  to  be  done  except  to  ascer- 
tain its  existence,  and  provide  for  its  application  to  the 
satisfaction  of  the  judgment.  But  if  there  is  any  contro- 
versy as  to  the  title,  or  if  the  relief  sought  involves  the 
exercise  of  high  chancery  powers,  such  as  setting  aside 
conveyances,  and  the  like,  then  the  proceeding  hj  credi- 
tors' bill  will  be  more  appropriate  f  which  remedy  is  still 
preserved,  the  Code  having  repealed  no  part  of  such  pro- 
ceedings, except  that  part  which  authorizes  a  discovery.^ 

Against  tohom,  and  hi  what  cases,  this  jyi'oceeding  aj^pUes. 

This  preceeding  may  be  had  against  the  judgment 
debtor,  or  any  one  of  several  judgment  debtors  in  the 
same  judgment,  after  an  execution  against  the  property 
of  such  debtors  has  been  properly  issued,  and  returned  in 
good  faith  by  the  proper  ofiicer,  "  unsatisfied  in  whole  or 
in  part."*  The  amendments  of  1863'  also  provide,  that 
these  proceedings''  may  be  taken  upon  the  return  of  an 
execution  "unsatisfied,"  issued  upon  a  judgment  recovered 
in  an  action  against  joint  debtors,  in  which  some  of  the 
defendants  have  not  been  served  with  the  summons  by 
which  such  action  was  commenced,  so  far  as  relates  to  tho 
joint  property  of  such  debtors ;  and  that  all  actions  by 
creditors,  to  obtain  satisfaction  of  judgments  out  of  the 
jjroperty  of  joint  debtors,  are  maintainable  in  the  like 
manner  and  to  the  like  effect. 

The  proceedings  mentioned  in  section  292  of  the  Code, 
are  held  to  be  applicable  only  in  cases  of  judgment  and 
execution  against  natural  persons,  capable  of  having  a 
residence  in  the  common  acceptation  of  that  term,  and, 
hence,  not  applicable  to  judgments  against  corporations. 
That,  where  resort  must  be  had  against  corporations  in 
such  cases,  the  remedies  prescribed  b}^  the  statute  against 
corporations  are  still  in  force   and  should  be   pursued."' 


'  2  Abb.,  457,  (458.)  ■■•  Catlin  v,  Doughty,  12  llow.,  -157. 

*  12  How.,  307  ;  id.,  457.  *  Code,  g  292. 

»  L.  18G:'.,  GGl,  cli.  392 ;  see  also  1  Code  Rep.,  94';  1  Sandf.,  722. 

'  Code,  §5  292  and  294. 

'  10  How.,  487  ;  id..  403 ;  2  R.  S.,  463;  2  N.  Y.  S.  at  L.,  483. 

II.— 12 


90  ADMINISTKATION  OF  CIVIL  JUSTICE. 

Nor  are  such  proceedings  applicable  to  insolvent  corpora- 
tions,^ nor  to  a  case  against  a  foreign  consul,  who  has 
permitted  judgment  by  default,=^  nor  in  any  case  where, 
iu  the  eye  of  the  law,  the  judgment  has  become  dis- 
charged. 

WJiat  must  appear  to  confer  jurisdiction. 

The  powers  given  by  the  Code  ^  for  proceedings  in  these 
cases  are  merely  statutory ;  consequently,  the  facts  neces- 
sary to  bring  the  case  within  the  provisions  of  section  292 
must  be  proved,  to  give  the  judge  jurisdiction.  The  mere 
appearance  of  the  judgment  debtor  and  his  examination 
without  objection  does  not  confer  jurisdiction.*  But  the 
judge  having  acquired  jurisdiction,  it  will  continue  until 
the  proceedings  are  terminated.* 

Before  the  execution  creditor  is  entitled  to  this  remedy, 
it  should  appear  that  his  remedy  on  the  execution  is  really 
exhausted.  There  must  be  nothing  like  the  appearance 
of  collusion  or  want  of  good  faith  in  the  return  of  the 
execution.  If  it  appear  that  the  execution  has  been  re- 
turned unsatisfied  at  the  request  of  the  execution  creditor, 
and  not  by  the  sheriff  in  the  responsible  discharge  of  his 
ofiicial  duty,  the  order  will  not  be  granted;  or  if  granted, 
will  be  revoked.^ 

The  execution  must  have  been  returned  unsatisfied  in 
whole  or  in  part,  before  the  judgment  creditor  is  entitled 
to  this  remedy,"  except  as  to  the  relief  contemplated  in 
the  second  part  of  this  section.  Under  the  provisions 
of  the  second  part  of  section  292  of  the  Code,  this  relief 
may  be  had,  provided,  after  the  execution  has  been  issued 
and  before  it  has  been  returned,  the  creditor  can  prove  to 
the  satisfaction  of  the  judge  that  the  debtor  has  property 
not  subject  to  levy,  or  which  is  so  kept  by  him  that  it 
cannot  be  clearly  identified,  or,  with  ordinary  care  and 
diligence,  be  reached  by  execution.^  But  if  it  appear  that 
the  property  referred  to  be  claimed  to  belong  to  another, 
as  the  wife  of  the  debtor,  these  summary  proceedings  will 
not  be  applicable.'* 

It  is  not  necessary  that  the  sheriff  should  retain  the 


'  11  How.,  29.  «  7  Abb.,  234;  6  Id.,  211;  15  How., 

*  2  Diier,  658.  410. 

'  §  292.  "•  10  How.,  560. 

*  10  How.,  561.  »  Code,  §  292,  subd.  2;  10  How.,  560; 

*  13  How.,  383.  13  id.,  137. 


SUPPLEMENTARY  TO  THE   EXECUTION.  91 

execution  in  his  hands  for  the  period  of  sixty  days  before 
returning  it.  If  he  returns  the  execution  "  unsatistied," 
upon  his  othcial  responsibility,  and  without  fraud  or  col- 
hision,  before  the  ex[>iration  of  the  period  allowed  for 
returning-  the  same,  the  order  may  be  properly  granted.^ 

The  order  for  an  examination.,  hoio  applied  for,  and  the  affidavit. 

The  application  for  the  order  for  an  examination  of  the 
judgment  debtor  is  made  by  aflSdavit,  setting  forth  all 
the  statutory  requisites,  such  as  the  entry  of  judgment,  the 
issuing  of  execution  to  the  proper  couutj^  and  the  return 
of  the  same  "unsatistied,"  in  whole  or  in  part,^  and  every 
other  fact  or  circumstance  necessary  to  give  validity  to  the 
proceedings  in  the  particular  case.^ 

The  affidavit  setting  forth,  in  general  terms,  the  neces- 
sary preliminary  facts  essential  to  such  ijroceedings,  need 
not  go  into  the  lesser  details  of  the  same,  although  care 
should  be  taken  to  set  them  forth  with  sufhcient  certainty 
to  show  the  party  entitled  to  this  remedy.  It  has  been 
held,  however,  that  the  judgment  creditor  has  a  right  to 
the  examination  under  the  Code,  whenever  an  execution 
has  been  returned  ''unsatisfied,''  in  whole  or  in  part,*  and 
that  this  right  to  an  examination  is,  like  the  right  to  dis- 
covery in  the  creditor's  action,  unqualitiedly  given  under 
such  circumstances.*  An  omission  to  state  in  the  affidavit, 
in  direct  terms,  that  the  execution  was  against  proijerty, 
will  not  be  fatal  as  the  presumption  will  be  that  it  was;^ 
but,  nevertheless,  omissions  of  that  character  in  the  state- 
ment of  facts  should  be  avoided. 

Where  the  ai)plication  is  by  an  assignee  of  the  original 
judgment  creditor,  his  title  to  the  judgment  must  be  al- 
leged for  the  purpose  of  showing  his  right  to  move  in  the 
premises."  So,  also,  where  the  defendant  has  been  once 
examined,  and  a  second  examination  is  sought,  the  reasons 
for  such  second  examination  should  be  stated  in  the  affi- 
davit.' 

The  affidavit  must  truly  describe  the  judgment  upon 
which  the  ijroceedings  are  based,  or  the  proceedings  them- 

»  2  Paige,  418;  2  Sand.,  679;  5  How.,     ^  9  Abb.,  180;  9  Barb.,  378. 
39G.  '  13  Abb.,  418,  Dote. 

*  Owen  V.  Du'pignac,  9  Abb.,  180;  see  this  case  for  form  of  aflSdavit  and  order, 
&c.,  or  the  manner  of  stating  the  facts. 

»  1  Code  R.  [N.  S.],  211.  '' 2  Hilt.,  534. 

•  5  How.,  508;  18  Id.,  96;  1  Code  Rep. 

[N.  S.],  232. 


92  ADMINTSTEATION  OF  CIVIL  JUSTICE. 

selves  will  be  void.'  But  an  omission  to  allege  that  a 
justice's  judgment  was  for  more  than  $25,  exclusive  of 
costs,  when  the  court  can  see  from  the  amount  of  it  that 
it  must  have  been  so,  will  not  vitiate.^ 

It  is  said  that  in  proceedings  before  a  county  judge,  the 
rule  is  more  strict  than  before  a  supreme  judge  or  judge 
of  the  court.  The  reason  assigned  is,  that  the  county- 
judge  being  an  inferior  officer,  all  facts  upon  which  his 
jurisdiction  is  based  must  be  shown  affirmatively,  as 
nothing  can  be  presumed  in  favor  of  a  limited  or  inferior 
jurisdiction.^ 

"Who  may  apply  for  the  order. 

In  general,  the  judgment  creditor  is  the  proper  person 
to  make  the  application  for  the  order,  and  to  make  the 
affidavit.  If  there  are  substantial  reasons  why  the  judg- 
ment creditor  cannot  make  the  application,  &c.,  those 
reasons  appearing,  it  may  be  made  by  his  agent  or  attor- 
ney. But,  if  possible,  the  affidavit  should  be  made  by  the 
party  himself. 

The  assignee  of  a  judgment  may  institute  these  pro- 
ceedings, although  he  become  such,  after  the  execution  has 
been  returned.*  And  where  the  affidavit  shows  the  credi- 
tor to  be  assignee  of  the  judgment,  it  sufficiently  shows 
his  authority  to  proceed,^  and  the  proceedings  by  assignee 
may  be  either  in  his  own  name  or  in  the  name  of  the 
nominal  plaintiff."^ 

The  order^  and  by  whom. 

The  affidavit  being  properly  prepared,  the  application 
for  an  order  for  examination  of  the  judgment  debtor  is 
made  to  the  judge  of  the  court,  or  to  a  county  judge, 
&c.,  according  to  the  circumstances.  The  debtor  can  be 
brought  up  for  examination  only  in  the  county  in  which 
he  resides,  or  has  his  place  of  business ;"  and  in  case  of  a 
judgment  of  a  local  court  of  another  county,  the  order 
must  be  obtained  from  a  county  judge.''  Since  the  amend- 
ment of  1858,  the  debtor  may  be  brought  up  for  examina- 


»  10  Abb.,  62.  *  1  C.  R.  N.  S.,  232. 

'  1  Abb.,  320.  s  3  Sandf.,  376. 

'  5  How.,  44G.  '  Code,  §  292. 

*  Orfs  Case,  2  Abb.,  457.  *  1  Duer^  594. 


SUPPLEMENTARY  TO  THE  EXECUTION.  93 

tion  in  tlie  county  where  be  has  his  place  of  business,  even 
though  be  sboukl  not  reside  in  such  county.^ 

It  must  also  be  remembered,  that  when  an  execution  is 
issued  on  a  judgment  of  a  county  court,  or  of  a  justice  of 
the  peace,  a  justice  of  the  supreme  court  has  no  jurisdic- 
tion to  make  the  order,  except  in  cases  where  it  is  made 
to  appear  to  his  satisfaction  b}^  aifdavit,  that  such  county 
judge,  or  judge  of  said  court  of  common  x>leas  of  the 
city  and  county  of  New  York,  is  incapacitated  ii-om  act- 
ing, &c.^ 

Where  a  judge,  residing  in  one  county,  requires  a  judg- 
ment debtor,  residing  in  another  county,  to  appear  before 
him  and  be  examined,  under  section  292  of  the  Code,  the 
order  is  irregular,  and  would  be  set  aside.  But  such 
irregularity  is  confined  to  such  specific  order,  and  would 
not  attect  another  order  made  by  the  same  judge  and  at 
the  same  time,  under  section  298  of  the  Code  forbidding 
the  debtor  to  interfere  with  his  property.^ 

We  have  already  seen  that  the  court  has  no  authority  to 
interfere  in  supplementary  proceedings  excex)t  on  appeal, 
and  except  under  the  provisions  of  the  second  division  of 
section  292,  and  that  the  special  term  has  no  jurisdiction 
to  make  any  order  coucerning  such  proceedings  or  con- 
cerning the  property  discovered  by  means  thereof.* 

Where  the  debtor  has  property  in  his  possession  open 
and  notorious,  and  which  is  within  reach  of  execution,  and 
he  shows  no  design  of  removing  it,  or  of  fraudulently 
disposing  of  it,  supplementary  proceedings  cannot  be 
maintained  without  a  return  of  the  execution.  In  order 
to  authorize  the  proceedings  after  nierel}'  issuing  the  exe- 
cution, property  not  subject  to  levy,  or  so  held  that  it 
Cimnot,  with  diligence,  be  reached  by  execution,  must  be 
shown  .^ 

A  warrant  may  be  issued  for  the  arrest  of  the  judgment 
debtor,  upon  proof,  by  affidavit  or  otherwise,  that  there  is 
danger  of  the  debtor  leaving  the  state  or  concealing  himself, 
and  that  there  is  reason  to  believe  that  he  has  property 
which  he  unjustly  refuses  to  apply  to  such  judgment,  which 
warrant  will  require  the  sheriff"  of  any  county  where  such 
debtor  may  be  to  arrest  him  and  bring  him  before  the 


»  L.  1858,  p.  493,  §  10.  '9  How.,  39. 

»  See  Code,  §  292.  as  amended  in  1 859 ;  M  7  How.,  80. 

Bee  G  How.,  108;  also  1  Code  Rep.,  *  10  How.,  560. 

N.  S.,  79. 


94  ADMINISTRATION  OF   CIVIL  JUSTICE. 

judge  issuing  the  same.  This  warrant  is  issued  in  place 
of  an  order  for  the  examination  of  the  del)tor.^ 

The  granting  of  an  order  does  not,  of  itself,  create  any 
iien  or  charge  even  upon  the  property  of  the  judgment 
debtor.^  But  if  the  proceedings  are  carried  forward  and 
perfected  by  the  appointment  of  a  receiver,  the  lien  will 
then  not  only  attach  but  will  relate  back  to  the  date  of 
thj  original  order. •* 

The  order  usually  contains  the  injunction  clause  pro- 
hibiting the  judgment  debtor  from  transferriug  or  disposing 
of  any  of  his  properly  not  exempt  from  execution,  because 
th3  judgment  creditor  has  a  right  to  have  satisfaction  of 
his  judgment  out  of  the  property  of  the  defendant;  and 
where  the  original  order  does  not  contain  that  clause,  a 
further  order  may  be  obtained  for  that  purpose.*  An  in- 
juuction  granted  in  connection  with  the  original  order  will 
not  necessarily  be  vacated  on  account  of  any  irregularity 
in  the  order,  provided  such  part  as  is  necessary  to  sustain 
the  iuj unction  be  regular.^ 

Service  of  the  order. 

This  is  made  usually  by  serving  a  copy  of  the  original 
order  upon  the  defendant  personally,  and  at  the  same  time 
giving  him  copies  of  the  affidavits  upon  which  the  order 
was  obtained.  The  original  order  should  also  be  exhibited 
to  the  defendant  at  the  time  of  serving  such  copies.® 
Proof  of  this  service  is  made  by  affidavits,  whether  served 
by  sheriff  or  otherwise.' 

The  defendant  having  been  served  with  such  order 
must  obey  it,  or  he  will  be  liable  to  a  proceeding  as  for  a 
contempt.  Where  there  is  a  valid  objection  to  the  order, 
such  as  is  fatal  to  it,  it  may  be  made  available  on  the 
plaintiff's  motion  founded  on  a  default  of  appearance. 
The  usual  method  of  taking  such  objection  is  at  the  time 
of  appearance,  by  refusing  to  answer.  It  may  be  taken 
on  special  motion,  made  upon  ijreliminary  notice  to  that 
effect.* 


>  Code,  §  292,  sub.  4.  '  See  WiUon  v.  Andrews,  9  How.,  39. 

"  Edmonston  v.  McLoud,  16  N.  T.,  543;  ^8  How.,   313;    17  Id.,  498;  4  Abb., 

2G  Barb.,  569,  435 ;   9  Id.,  385,  note, 

'  Porter  v.  Williams,  9  N.  Y.,  142.  ''  17  How.,  498. 

*  3  How.,  313.  *  12  How.,  359;  3  Abb.,  96. 


SUPPLEMENTARY  TO  THE  EXECUTION.  95 

All  mere  formal  objectious  are  waived  by  appearance.^ 
So,  also,  submitting"  to  an  examination  is  a  waiver  of  a 
formal  objection  to  the  jurisdiction  of  the  officer,^  although 
it  is  otherwise  when  the  objection  goes  to  the  substance.' 

The  examination. 

The  time  and  place.  The  debtor  being  a  resident,  the 
examination  must  be  had  in  the  county  where  he  resides, 
or  in  which  he  has  a  place  of  business.^  Not  being  a  resi- 
dent of  the  state,  the  examination  may  be  in  a  county  in 
which  the  judgment  roll  is  filed;  or  if  the  execution  be 
issued  upon  the  judgment  of  a  justice,  exceeding  twenty- 
five  dollars,  exclusive  of  costs,  then  in  the  county  in  which 
a  transcript  thereof  has  been  filed.^  If  there  are  several 
judgment  debtors  to  be  examined,  residing  in  different 
counties,  each  debtor  must,  undoubtedly,  be  reached  by 
I)roceedings  had  in  reference  to  him.  When  the  debtor 
has  left  the  county  after  the  issuing  of  the  execution,  his 
examination  may  be  had  in  the  county  where  he  resided 
when  the  execution  was  issued." 

The  time  of  the  examination  is  determined  by  the  order, 
and  is  fixed  in  the  discretion  of  the  judge.  The  party  is 
entitled  to  reasonable  notice,  and,  consequently,  a  reason- 
able time  should  elapse  between  the  service  of  such  notice 
and  the  time  of  the  examination. 

The  appearance.  If  neither  the  plaintiff  or  his  coimsel  do 
appear  at  the  time  of  the  examination,  it  will  be  deemed 
a  discontinuance  of  the  proceedings  on  his  part,  and  the 
defendant  will  be  discharged  from  further  attendance; 
and  no  order  vacating  the  proceedings  will  be  necessary.'' 
So,  if  the  judge  should  be  absent,  the  case  would  fail. 

But  a  mere  temporary  absence  of  the  judge  would  not 
excuse  the  immediate  departure  of  the  defendant,  as,  the 
judge  appearing  within  a  reasonable  time,  the  proceed- 
ings would  be  had,  and,  the  defendant  being  absent,  he 
would  be  liable  as  for  a  contempt.'' 

The  judge  has  no  authority  to  adjourn  the  examination 
without  the  consent  of  the  party  against  whom  the  pro- 
ceeding is  had  f  with  that  consent,  it  may  be  adjourned 

'  17  How.,  498;   8  Id.,  313.  '  14  Abb.,  257. 

»  5  Diier,  672;   3  Abb.,  119.  '  1  Bosw.,  690  (093). 

*  10  How.,  560.  *  20  How.,  454. 

*  Code,  §  292,  sub.  1.  '  5  How.,  446. 

*  Idem. 


96  ADMINISTRATION  OF  CIYIL  JUSTICE. 

from  time  to  timeJ  Sliould  there  be  a  failure  from  acci- 
dent to  the  plaiutiff,  so  that  jjroceedings  should  cease,  he 
will  be  obliged  to  commence  de  novo;  and  in  such  com- 
mencement give  some  valid  excuse  for  such  neglect  or 
default.^  When  there  has  been  a  proper  appearance  by 
all  the  i)arties,  and  an  adjournment  becomes  necessary, 
the  plaintiff,  as  a  matter  of  precaution,  should  obtain  the 
written  consent  of  the  defendant  to  such  adjournment. 
This  becomes  proper,  as,  in  case  of  adjournment,  it  may 
become  necessary  for  him  to  prove  that  such  consent  was 
given.  So  also  the  signature  of  the  judge  or  officer  to  a 
short  memorandum  of  the  adjournment  should  be  pro- 
cured.^ 

Examination  of  the  defendant. 

The  object  of  the  examination  of  the  defendant,  or  of 
witnesses  on  either  side,  is  to  ascertain  whether  the  debtor 
has  any  property  subject  to,  or  exempt  from  the  execution 
which  ought  to  be  applied  to  the  extinguishment  of  the 
plaintiff's  judgment.*  And  as  the  judgment  debtor  may 
be  examined  in  the  same  manner  as  a  witness,  his  exami- 
nation will  be  subject  to  similar  rules  as  that  of  a  party 
to  the  action.^  The  examination  is,  in  itself,  in  the  nature 
of  a  cross-examination ;  and  may  be  prosecuted  to  any 
reasonable  extent  for  the  purposes  of  such  an  examination. 
Leading  questions  may  be  asked  of  the  defendant.  But 
he  may  refuse  to  answer  them  at  his  peril  of  being  judged 
in  contempt,  if  they  should  prove  to  be  proper  questions. 

In  the  case  of  Le  Roy  v.  Halsey,  above  cited,  Justice 
Mason  remarked  that  it  was  impossible  to  lay  down  any 
particular  rules  on  this  subject  which  would  be  universally 
applicable,  further,  than  that  the  whole  examination  must 
have  for  its  single  object  to  ascertain  whether  there  is  any 
property  of  the  debtor  which  ought  to  be  applied  to  the 
payment  of  the  plaintiff's  claim ;  and  the  extent  of  the 
inquiry  in  each  particular  case  must  be  left  to  the  good 
sense  of  the  officers  under  whose  direction  the  examina- 
tion takes  place,  having  in  view  this  general  object." 

As  the  judgment  debtor  may  be  examined  as  a  witness 
in  his  own  behalf,  his  examination  and  cross-examination 


•  1  Ck)de  R.  (N.  S.),  T5  (79).  •  1  Duer,  589. 

»  1  Bosw.,  696.  •  I  C.  R.  (N.  S.),  277  ;  see  also  2  Abb., 
•Idem.  462;  6  Idem,  212. 

*  LeRoyv.  ffalsey,  1  C.  R.  (N.  S.),  275. 


SUPPLEMENTAKY   TO  THE  EXECUTION.  97 

are  liable  to  be  rebutted.^  When  the  examination  only 
leads  to  the  discovery  of  property  in  the  possession  of  a 
third  person  claiming  title  in  himself,  no  order  can  bo 
made  to  compel  the  defendant  to  deliver  it  over;  con- 
sequently the  investigation  in  that  direction  is  at  an  end 
in  these  proceedings;  for  it  is  a  general  rule,  in  these 
proceedings,  that  the  examination  can  onlj'  be  extended 
to  the  discovery  of  property  either  in  the  possession  or 
under  the  control  of  the  defendant.  When  it  is  in  the 
possession  and  control  of  third  parties,  the  remedy  is  by 
action.^  But  when  the  debtor  discloses  that  he  still  retains 
an  interest  in  the  property  sold,  the  inquiry  may  be  still 
further  pursued.-' 

These  examinations  and  answers,  whether  had  before  a 
judge  or  referee,  are  to  be  upon  the  oath  of  the  party  or 
witnesses  examined,  except  in  cases  where  a  corporation 
answers,  it  is  to  be  upon  the  oath  of  an  officer  thereof.'* 

After  the  examination  is  complete,  it  will  be  necessary 
for  the  plaintiff  to  move  the  judge  for  such  further  order 
as  is  necessary  to  carry  out  the  objects  of  such  examina- 
tion. Should  the  parties,  after  the  examination  is  con- 
cluded, leave  the  matter  without  an  adjournment,  or  the 
appointment  of  a  receiver,  or  any  other  order  in  the 
premises,  the  proceedings  will  be  deemed  to  have  been 
abandoned. 

A  reference^  when  had. 

Where  the  investigation  in  these  proceedings  is  likely 
to  l)ecome  protracted  or  difficult,  it  is  the  practice  of  the 
judge  to  order  a  reference  to  report  the  evidence  or  the 
facts,^  otherwise  the  examination  is  had  before  the  judge 
at  chambers;  at  least,  it  has  been  laid  down  as  a  general 
rule,  that  a  reference  will  not  be  made  against  the  wishes 
of  either  party  except  under  such  circumstances.'^ 

On  an  application  to  a  judge  for  an  order  for  the  exami- 
nation of  the  judgment  debtor,  he  may  at  once  order  a 
reference  and  appoint  a  referee  to  take  the  examination. 
He  need  not  first  bring  the  debtor  before  him  before  making 
such  an  order.'  The  referee  need  not,  necessarily,  reside 
in  the  same  county  with  the  judgment  debtor  where  the 

'  Code,  §§  393,  395.  »  Code,  §  300. 

»  4  Bosw.,  683.  •  3  Sand.,  742. 

•  2  Hilt.,  438.  '  11  How.,  446;  8  Id.,  313. 

*  Code,  §  29G. 

II.— 13 


98  ADMINISTR/VTION  OF   CIVIL  JUSTICE. 

proceeding  is  under  subdivision  three  of  section  292  of 
tlie  Code.  In  that  case,  the  judge  has  authority  to  issue 
Lis  warrant  for  the  arrest  of  the  debtor  residing  in  any 
other  county  in  his  judicial  district,^  requiring  him  to  be 
brought  before  such  judge,  or  a  referee  by  him  appointed, 
to  take  such  examination.  Generally,  the  referee  is  subject 
to  the  same  restrictions,  as  to  the  plan  of  conducting  the 
examination,  as  is  the  judge  by  whom  he  was  appointed. 

The  referee  has  no  control  over  the  person  of  the  judg- 
ment debtor,  to  compel  an  appearance,  or  to  punish  him 
for  disobedience  of  orders.  He  can  only  report  to  the 
judge  appointing  him.^  Nor  has  the  referee  any  authority 
to  adjourn  the  examination  without  the  consent  of  the 
defendant,  and  then  summon  him  to  appear  again  at  a 
future  day.^  He  properly  may  decide  what  effects  are  to 
be  delivered  to  the  receiver,  sjiecifying  them  particularly,'* 
and  if  the  articles  are  iDonderous,  he  should  designate  a 
time  for  the  debtor  to  attend  at  the  place  of  delivery. 
When  the  debtor  is  entitled  to  exemption,  the  referee 
should  specify  and  otherwise  designate  the  property  of 
the  debtor  to  be  excepted  and  exempt  from  delivery  to 
the  receiver,  as  it  is  not  the  design  of  the  law  to  permit  the 
receiver  to  go  and  seize,  under  a  general  direction  to  take 
possession  of  the  debtor's  elfects,  all  such  property  as,  in 
his  discretion,  he  might  deem  to  fall  within  the  scope  of 
the  order.^ 

The  defendant  having  ])een  summoned  before  a  referee 
under  an  order  of  reference  to  appoint  a  receiver,  and 
having  appeared  and  been  examined  on  oath  as  to  his 
proi)erty,  and  having  delivered  such  property  to  the 
receiver,  the  power  of  the  referee  is  at  an  end,  and  he 
cannot  require  the  defendant  to  appear  for  a  second 
examination  without  a  fm'ther  order  from  the  court  or 
officer  appointing  him.^ 

The  referee  making  the  examination,  reports  the  same 
according  to  the  order  making  the  reference,  to  the  judge 
from  whom  he  received  his  appointment,  and  not  to  any 
other  judge  of  the  same  court,  because  the  jurisdiction  is 
personal  in  such  judge.  It  is  held,  however,  that  when 
the  reference  is  made  under  the  2d  division  of  section  292, 


'  9  How.,  39.  »  See  1  Sand.,  724,  and  the  remarks  of 

«  8  How.,  318.  San-dforf.,  J. 

»  11  Paige,  180.  «  11  Paige,  180:  2  Abb.,  457. 

♦  1  Sand.,  724. 


SUPPLEMENTARY  TO  THE  EXECUTION.  99 

the  referee  may  report  to  the  court  in  the  usual  manner. 
If  required  to  report  the  facts  of  tlie  case,  he  is  not  at 
liberty  to  report  the  evidence  instead ;  and  if  he  does  so 
his  report  will  be  sent  back. 

There  is  no  case  where  it  is  proper,  on  supplementary 
proceedings,  to  review  the  merits  of  the  original  action.^ 

The  examination  of  a  third  party. 

It  appearing  to  the  judge,  by  affidavit,  either  after  the 
issuing  or  the  return  of  the  execution,  that  any  person  or 
corporation  has  property  of  such  judgment  debtor,  or  is 
indebted  to  him  in  an  amount  exceeding  ten  dollars,  he 
may,  by  order,  require  such  i^erson  or  corporation,  or  any 
officer  or  member  thereof,  to  appear  at  a  specified  time 
and  place,  and  answer  concerning  the  same.  And,  if  he 
think  proper,  he  may  require  notice  of  such  proceeding  to 
be  given  to  any  party  in  the  action,  in  such  manner  as 
to  him  shall  seem  proper.^  But  such  notice  to  the  debtor 
of  the  examination  of  a  third  person  is  not  essential.^ 

It  has  been  held  that  this  proceeding  is  merely  in  aid  of 
the  principal  proceeding  against  the  judgment  debtor,  and 
must  be  had  in  connection  with  it,^  and  that,  consequently, 
this  order  cannot  be  made  after  the  death  of  the  judgment 
debtor,  and  if  so  made,  the  proceedings  will  abate.^  But 
a  contrary  doctrine  has  also  been  held,  that  the  examina- 
tion contemplated  by  §  294  of  the  Code  is  a  jn'oceeding  quite 
distinct  from  the  execution ;  that  this  examination  may 
be  had  pending  the  life  of  the  execution,  or  after  it  has 
been  returned ;  but  that  the  object  of  the  examination  is 
not  to  remove  obstructions  to  the  execution,  that  it  maj'  be 
satisfied  bj"  full  execution  thereof;  that  whatever  is  dis- 
covered or  obtained  under  such  examination,  is  to  be  applied 
directly  to  the  extinguishment  of  the  debt  embraced  in 
the  judgment,  and  not  to  the  execution;  and  that,  conse- 
quently, an  order  staying  proceedings  on  an  execution, 
will  not  prevent  the  creditor  from  i)roceeding  under  section 
294  to  make  the  examinations  therein  contemplated.^ 

It  would  seem,  however,  that  the  proceedings  contem- 
plated by  section  294  of  the  Code,  might  or  might  not  be 

»  1  E.  D.  Smith,  404;  1  llilt.,  i09;  S.  *  12  How.,  136;  10  How.,  487;  2  Abb., 

C,  3  Abb.,  96  ;   12  How.,  359.  230, 

«  Code.  §  294.  *  2  Abb.  230. 

*  4  How.,  178;   12  How.,  136;  10  Abb.,  '  Lowber   v.    The  Mayor,  dc,  of  Kew 

460.  York,  5  Abb.,  268. 


100  ADMINISTRATION   OF   CIVIL  JUSTICE. 

in  aid  of  the  execution,  according  to  the  circumstances 
under  which  the  order  for  examination  was  made.  If,  at 
the  time  of  applying  for  tlie  order,  the  execution  remained 
in  the  hands  of  the  sheriff  unexecuted  for  want  of  pro- 
perty whereon  to  levy,  and  the  examination  should  disclose 
the  existence  of  property  liable  to  levy,  there  could  be  no 
objection  to  a  levy  on  such  property  ;  or  the  judge,  inider 
section  297,  might  order  the  same  to  be  applied  towards 
the  satisfaction  of  the  judgment,  by  levy  and  sale  on  such 
execution.  But  if  such  proceedings  were  instituted  after 
the  return  of  the  execution,  and  the  examination  should 
disclose  property  or  money  belonging  to  the  debtor,  the 
judge  might  order,  under  proper  circumstances,  a  direct 
application  of  the  same  to  the  extinguishment  of  the  judg- 
ment, without  any  other  reference  to  the  execution  than 
the  fact  that  it  had  been  properly  issued  and  returned. 

The  affidavit  to  obtain  an  order  for  the  examination  of  a 
third  party  should  state  affirmatively  a  sufficient  ground 
for  the  order.  It  is  not  sufficient  to  state  in  the  alterna- 
tive, that  the  third  party  "has  property,  &c.,"  or  is 
indebted,  &c.^ 

The  affidavit  should  state  the  judgment,  the  issuing  of 
the  execution,  and  the  return  of  it,  if  it  has  been  returned, 
stating  the  return  thereon  ;  that  the  person  or  corporation 
nought  to  be  examined,  has  property  of  the  judgment 
debtor,  or  is  indebted  to  him  in  an  amount  exceeding  ten 
dollars,  as  the  case  may  be  ;  each  of  which  allegations  may 
be  in  general  terms,  but  must  be  positive  and  certain,  and 
not  in  the  alternative.^ 

The  examination  of  sucli  third  party  may  be  ordered  in 
the  county  in  which  he  resides  without  reference  to  the 
residence  of  the  judgment  debtor.  The  place,  in  that 
respect,  may  be  fixed  with  reference  to  the  convenience  of 
the  parties.^  To  lay  the  foundation  for  such  examination, 
it  will  be  sufficient  to  issue  the  execution  to  the  county 
where  such  property  is  expected  to  be  found,  and  where 
such  third  person  resides,^  and  it  is  only  necessary  that 
the  execution  shall  have  been  issued  at  the  time  the  order 
is  obtained.* 

It  has  also  been  held  that  proceedings  under  section  294 
of  the  Code  are  not  applicable  to  corporations,  on  the 


^  1  Code  R.,  38.  *  4  Sand.,  640. 

«  8  Abb.,  407 ;  S.  C,  18  How.,  258.  *  10  Abb.,  460. 


SUPPLEMENTAKY  TO  THE   EXECUTION.  101 

principle  that  an  examination  under  it  is  merely  auxiliary 
to  au  examination  instituted  under  section  292,  and  cannot 
be  set  on  foot  as  an  independent  proceeding.^  There 
seems  to  be  no  substantial  ground  lor  such  restriction ; 
and  beside,  in  the  first  judicial  district,  the  practice  is  uni- 
form to  allow  an  examination  of  a  person  indebted  to  a 
judgment  debtor  independently  of  an  examination  of  such 
"debtor.^ 

So  where  a  judgment  had  been  recovered  against  a 
joint  stock  association,  sued  in  the  name  of  its  president 
or  treasurer,  under  the  act  of  1849,  it  was  held  that  such 
officer  might  be  examined  in  supplementary  proceedings 
under  section  294,  on  showing  him  to  be  indebted  to  the 
association  in  a  sum  exceeding  ten  dollars.^  So,  likewise, 
the  treasurer  of  a  municipal  corporation  having  funds  in 
his  hands  belonging  to  the  corporation,  may  be  examined.* 
And  persons  having  funds  in  their  hands  belonging  to 
either  domestic  or  foreign  corporations,  or  being  indebted 
to  them  in  a  sum  exceeding  ten  doHars,  maj^  be  examined 
under  section  294.^  But  it  has  been  held  that  public 
moneys  raised  by  a  municipal  corporation  by  tax  for  pur- 
poses of  government,  and  in  the  hands  of  its  fiscal  officer, 
are  not  the  property  of  the  corporation,  or  a  debt  due  to 
it,  within  the  meaning  of  such  section.''  So,  also,  an 
officer  of  the  court  having  custody  of  a  fund,  cannot  be 
examined  either  as  a  person  or  a  corporation  under  such 
section.  The  remedy  in  such  case  would  be  by  petition, 
&c." 

The  order  for  the  examination  of  such  third  person 
must  particularly  specify  the  person  to  be  examined,  and 
must  designate  the  time  and  place  for  such  examination, 
and  require  the  party  to  appear  at  such  time  and  ])lace, 
either  before  the  judge  or  a  referee,  to  be  examined  con- 
cerning the  property  in  question.  This  order  should  be 
personally  served  upon  such  person  in  season  to  enable 
him  to  obey  it  at  the  time  specified.  Notice  of  this  order 
need  not  be  served  upon  other  parties  to  the  suit,  unless 
the  judge,  in  his  discretion,  shall  require  it. 


"  12  ITow.,  136.  '  Idem;  28  Barb.,  47G;  S.  C,  1  Abb., 

»  5  Abb.,  271,  note.  347. 

»  1  Hilt..  109;    S.   a,  3  Abb.,  9C;    12     *  7  Abb.,  248. 

How.,  359.  '  1  Code  K.  (N.  S.),  211. 

*  5  Abb.,  268. 


102  ADMINISTRATION   OF   CIVIL  JUSTICE. 

The  person  tlius  served  may  be  required  to  attend  and 
submit  to  such  examination,  and  if  be  refuse,  be  may  be 
compelled  by  process  of  attachment. 

A  person  examined  under  this  section  (294)  is  in  effect  a 
party  to  the  proceedings,  and  his  examination  is  to  be 
conducted  on  the  same  principle  and  in  the  same  manner, 
as  that  of  the  judgment  debtor  under  section  292.  His 
examination  is  in  the  nature  of  a  cross-examination,  and 
lie  may  have  the  benefit  of  counsel  for  advice  and  instruc- 
tion in  framing  his  answers.^  The  answers  to  the  inter- 
rogatories being  tal^en  orally,  great  liberality  is  allowed  in 
correcting  errors  and  mistakes,  which  is  done  by  supple- 
mental statement,  leaving  the  original  unaltered.^  The 
examination  being  in  the  nature  of  a  cross-examination, 
leading  questions  are  allowable.^ 

As  the  examination  is  to  be  in  respect  to  property 
belonging  to  the  judgment  debtor  which  might  be  ordered 
to  be  applied  to  the  extinguishment  of  the  judgment, 
whenever  it  appears  that  the  person  examined  claims  the 
property  as  his  own,  the  examination  is  at  an  end.  It  is 
held,  however,  that  the  claimant  may  be  examined  as  to 
the  extent  of  his  claim,  though  not  in  respect  to  his  title ; 
as  the  validity  of  his  claim  must  be  settled  by  an  action 
bropght  by  a  receiver,  in  which  he  can  have  the  usual 
advantage  of  a  part3^^  When  the  party  examined  claims 
a  lien  on,  or  interest  in,  the  property,  he  may  be  examined 
as  to  the  manner  in  which,  and  the  time  when,  the  pro- 
perty came  into  his  hands,  as  well  as  into  the  nature  and 
extent  of  the  lieu  claimed.^ 

The  examination  of  toitnesses. 

Witnesses  also  may  be  examined  on  any  proceedings 
supplementary  to  execution,  and  they  may  be  required  to 
appear  and  testify  in  the  same  manner  as  upon  the  trial 
of  an  issue.*  The  examination  of  the  witnesses  will  be 
upon  oath,  and  it  has  been  held  that  they  cannot  be  ex- 
amined by  commission  on  proceedings  under  this  chapter.* 
These  witnesses  are  called,  either  for  the  purpose  of  dis- 
covering proi3erty  of  the  debtor,  which  may  be  made 
subject  to  the  payment  of  the  judgment ;  or,  for  the  pur- 


'5  How.,  16.  M  C.  R.,  72. 

*  See  3  Code  Rep.,  157 ;  also,  5  How.,     ♦  Code.  §  295. 

446;   21  How.,  17;  Code,  §  299.         '  14  How,  52;  6  Duer,  678. 


SUPPLEMENTARY   TO   THE  EXECUTION.  103 

pose  of  rebutting  tlie  testimoDy  of  others  given  upon  that 
subject ;  and  the  examination  may  be  full  as  to  all  matters 
within  the  legitimate  scope  of  the  inquiry  being  made. 
The  witness  is  bound  to  answer  all  such  questions  as  may 
be  put  to  him  concerning  such  property  of  the  judgment 
debtor,  and  will  not  be  excused  though  he  should  set  up 
a  claim  to  the  property  iu  himself.^ 

"Wluit  property  may  he  reached  under  these  proceedings. 

It  is  provided  that  the  judge  may  order  any  property  of 
the  judgment  debtor,  not  exempt  from  execution,  in  the 
hands  of  the  debtor  or  of  any  other  person,  to  be  applied 
towards  the  satisfaction  of  the  judgment,  except  that  the 
earnings  of  the  debtor  for  his  personal  services,  at  any 
time  within  sixty  daj'S  next  preceding  the  order,  cannot 
be  so  applied  when  it  is  made  to  appear,  by  the  debtor's 
attidavit  or  otherwise,  that  such  earnings  are  necessary 
for  the  use  of  a  family  supported  wholly  or  i)artly  by  his 
labor.^ 

These  proceedings  will  not  reach  money  not  actually 
due  to  the  judgment  debtor,  but  to  become  due  on  a  con- 
tingency, or  on  an  executory  contract,^  nor  will  they  reach 
property  acquired  by  the  debtor  after  the  commencement 
of  these  proceedings,*  or  movables  assigned  for  the  benefit 
of  creditors,  even  while  the  execution  was  in  the  hands  of 
the  sheriff',  if  it  be  returned  without  levy.^  Nor  will  these 
proceedings  reach  the  interest  of  a  debtor  as  a  cestui  que 
trust,  under  a  will,  by  which  the  executors  are  to  apply 
the  annual  income  of  a  fund  to  the  judgment  debtor  for 
life.*^  The  remedy  in  such  case  would  be  by  creditor's 
bill  to  sequestrate  such  annual  fund  as  was  not  necessary 
for  the  maintenance  of  the  debtor."  So  money  due  to  the 
debtor  on  an  insurance  policy  by  reason  of  a  loss  which 
accrued  after  the  appointment  of  a  receiver,  is  subse- 
quently acquired  property,  and  does  not  i^ass  to  tho 
receiver.^ 


'  2  Abb.,  4=62.  '  4Sandf.,  700;  9  Cow.,  728. 

»  Code,  §  297.  '  6  Diier,  672;  1  Hilt.,  505 

»  7  N.  Y.,  L.  0.,  184.  '  G  Duer,  672. 

*  13  Barb.,  335;  IG  How.,  275.  '  8  Abb.,  343. 


104  ADMINISTRATION  OF   CIVIL  JUSTICE. 

The  appointment  of  a  receiver. 

The  judge  before  whom  these  proceedings  are  instituted 
has  authority  to  appoint  a  receiver  of  the  property  of  the 
judgment  debtor;  but  before  doing  so,  he  must  ascertain, 
upon  the  oath  of  the  party  or  otherwise,  whether  any 
other  supplementary  proceedings  are  pending  against 
such  debtor ;  and  if  any  such  are  so  pending,  the  plaintiff 
therein  must  liave  notice  to  appear,  and  must  likewise 
have  notice  of  all  subsequent  proceedings  in  relation  to 
such  receivership  ;  and  no  more  than  one  receiver  of  the 
property  of  the  judgment  debtor  can  be  appointed.  The 
order  for  the  appointment  of  the  receiver  of  the  debtor's 
property  must  be  filed  in  the  office  of  the  clerk  of  the 
county  where  the  judgment  roll  in  the  action  is  filed,  or 
the  transcript  of  the  justice's  judgment,  as  the  case  may 
be,  npon  which  the  i)roceedings  are  taken ;  and  the  clerk 
must  record  the  order  in  an  order  book  kept  for  that  i^nr- 
pose,  and  note  the  time  of  the  filing  of  said  order.  He 
then  delivers  to  the  receiver  named  therein  a  certified 
copy  of  said  order,  and  the  receiver  becomes  vested  with 
the  title  to  the  property  of  the  judgment  debtor  from  the 
time  of  the  filing  and  recording  of  said  order.^  But  before 
the  receiver  becomes  vested  with  the  title  to  auj-^  real 
property  of  the  judgment  debtor,  a  certified  copy  of  the 
order  must  also  be  filed  and  recorded  in  the  office  of 
the  clerk  of  the  county  in  which  such  real  estate  of  the 
judgment  debtor  is  situate,  and  also  in  the  office  of 
the  clerk  of  the  county  in  which  he  resides.^  And  the  re- 
ceiver thus  appointed  is  subject  to  the  control  of  the  court 
in  which  the  judgment  was  obtained  npon  which  the  pro- 
ceedings are  founded  ;  and  where  the  judgment  is  upon  a 
transcript  from  justice's  court,  filed  in  the  county  clerk's 
office,  then  he  is  subject  to  the  direction  and  control  of  the 
county  court.^ 

When  the  title  to  the  fund  in  question  is  disputed  so 
that  the  title  of  a  third  jjarty  comes  in  question,  it  becomes 
the  duty  of  the  judge  to  appoint  a  receiver  who  should 
proceed  to  institute  the  proper  action,  under  subdivision  5 
of  section  244  of  the  Code,  to  try  the  title  to  such  pro- 
perty.^   In  the  case  of  Hodman  v.  Henry,^  Johnson,  Ch. 


'  Code,  §  298.  *  9  How.,  97;  5  Id.,  446. 

'  L.  1803,  ch.  392,  p.  651.  '  17  N.  Y.,  482. 

'  Code,  §  298. 


SUPPLEMENTAUT  TO   THE  EXECUTION.  105 

J.,  remarked,  tLat  it  was  the  obvious  purpose  of  the  series 
of  provisions — from  sections  294  to  297  of  the  Code — "to 
give  the  creditor  an  immediate  and  summary  remedy 
against  the  debtor's  property,  but  not  to  permit  the  rights 
of  third  persons  to  be  brought  into  litigation  excejit  in  a 
regular  way  by  suit.'" 

To  authorize  the  appointment  of  a  receiver  under  section 
298  of  the  Code,  proceedings  must  have  been  instituted 
against  the  judgment  debtor  to  reach  his  property  generally, 
and  u))on  notice  to  the  debtor.  A  receiver  cannot  be  ap- 
pointed on  the  mere  examination  of  a  third  jjerson  under 
section  294.^  The  motion  for  the  appointment  of  a  receiver 
should  be  made  to  the  judge  granting  the  order  for  an 
examination,^  as  no  other  judge  out  of  court  has  that 
power.* 

The  application  for  such  appointment  may  be  made  at 
any  time  after  it  becomes  apparent  that  such  an  appoint- 
ment will  become  necessary.  If  not  made  while  the  judg- 
ment debtor  is  present  at  the  examination,  the  motion  for 
such  appointment  should  be  upon  the  ordinary  notice  to 
him;  and  if  other  supplementary  proceedings  have  also 
been  instituted  against  such  debtor,  then  also  upon  notice 
to  the  plaintiff  in  such  other  proceedings,^  serving  only  the 
notice  of  the  motion  for  such  appointment." 

Where,  on  the  examination  of  a  judgment  debtor,  it  ap- 
pears that  subsequent  to  the  service  of  an  order  for  the 
examiuation,  the  defendant  has  conveyed,  by  bill  of  sale, 
personal  property  owned  by  him,  to  a  creditor  who  claims 
to  be  a  bona  fide  purchaser  for  value,  the  judge  has  no 
authority  to  go  and  try  the  disputed  question  of  title  to  such 
jjroperty.  That  can  only  be  determined  by  legal  proceed- 
ings commenced  for  that  purpose  by  the  receiver  appointed.' 

A  receiver  may  be  a[)pointed  even  before  it  actually 
appears  that  the  judgment  debtor  has  any  property,"  and 
the  debtor  cannot  object  to  such  appointment  on  the  ground 
that  the  examination  has  not  shown  him  to  be  the  owner 
of  any  property.''  For  if  he  possess  no  property,  he  can- 
not be  injured  by  the  appointment  of  a  receiver. 

The  order  appointing  the  receiver  should  also  direct  the 


'  n  N.  Y.,  482.  "4  3311^,094. 

'  4  How.,  178;  5  Id.,  29.  ■"     Tdkrv.  Randall,  2G  How.,  155;  seo 

»  7  How.,  ?.0.  also,  17  X.  Y.,  482. 

♦  Code,  §s  292,  296,  298;  G  How.,  350.     '  2  Abb.,  470;  G  Id.,  92. 

»  Code,  §  298.  •  2  Abb.,  476;  4  Paigo,  574;  8  Id.,  5Ga 


106  ADMINISTEATION  OF  CIVIL  JUSTICE. 

judgment  debtor  to  deliver  bis  property  to  sucb  receiver, 
so  tbat  tbe  debtor  may  be  punished  as  for  a  coutempt  on 
refusing  to  do  so.^  But  the  judge  bas  no  authority  to 
direct  an  assignment  as  to  personal  property.  He  can 
only  forbid  any  transfer  or  other  disposition  of  such  pro- 
perty until  the  receiver  has  an  opportunity  to  sue  for  the 
same.*  Nor  is  such  an  assignment  necessary  as  the  i^ro- 
l)erty  is  transferred  to  such  receiver  by  his  appointment 
under  section  298  of  the  Code;  and  he  may  bring  an 
action  to  set  aside,  on  the  ground  of  fraud,  an  assignment 
of  real  and  personal  property  made  by  the  judgment 
debtor.  He  not  only  stands  in  the  place  of  the  judg- 
ment debtor,  but  he  also  represents  the  creditors.^  The 
order  should  also  contain  a  clause  prohibiting  the  debtor 
from  transferring  his  property,  &c.,  to  others  than  the 
receiver,  or  from  any  interference  therewith.^ 

It  has  been  already  remarked  that  no  actual  lien  is 
acquired  as  against  the  property  of  the  judgment  debtor 
until  the  appointment  of  a  receiver  has  been  perfected.' 
But  being  perfected,  the  lien  attaches  and  dates  back  to 
the  making  of  the  original  order,''  and  has  been  enforced, 
as  against  a  levy  and  sale  by  a  subsequent  creditor,  inter- 
mediate the  making  of  the  order  and  the  axjpointment  of 
a  receiver.^  The  title  of  the  receiver  does  not  extend  be- 
yond the  right  of  the  judgment  debtor  so  as  to  work  any 
prejudice  to  prior  liens.^ 

The  action  by  the  receiver. 

Whenever  it  appears  that  a  person  or  corporation  alleged 
to  have  property  of  the  judgment  debtor,  or,  alleged  to  be 
indebted  to  him,  claims  an  interest  in  the  property  adverse 
to  such  debtor,  or  denies  the  debt,  then  such  interest  or 
debt  can  be  recovered  only  in  an  action  against  such  per- 
son or  corporation  by  the  receiver.^  This  section  applies 
only  to  actions  between  third  persons,  and  not  to  those 
between  judgment  creditor  and  judgment  debtor  only. 
Under  section  297  the  judge  is  invested  with  authority  to 
order  property  of  the  judgment  debtor,  in  the  hands  of 
himself  or  of  any  other  person,  or  due  to  the  judgment 


*  5  Duer,  629.  "  5  Sandf.,  610. 

*  5  How.,  446.  ''  3  Bosw.,  550. 

»  9  N.  Y..  142;  16  N.  Y.,  543.  "  17  How.,  549;  9  Abb.,  V9. 

*  Code,  §  298 ;  see  8  How.,  313.  »  Code,  ^  299. 

*  16  N.  Y.,  543. 


SUPPLEMENTARY  TO   THE   EXECUTION.  107 

debtor,  to  be  applied  toward  tlie  satisfaction  of  the  judg- 
ment. Tliis  summary  authority  to  be  exercised  without 
action,  is  broad  enough  to  include  property  claimed  by 
third  persons.  Therefore,  to  ijrevent  the  exercise  of  such 
power  when  third  persons  made  claim,  the  299th  section 
was  framed,  giving  an  action  by  the  receiver  instead  of 
such  summary  method,  and  making  such  action  the  oidy 
method  of  determining  the  rights  of  third  persons  in  the 
premises.'  It  thus  authorizes  an  action  by  the  receiver, 
and  prohibits  a  summary  order  when  third  persons  are 
concerned.'  Besides,  it  is  confined  in  its  operations  to 
cases  where  proceedings  supplementary  to  execution  have 
been  instituted,  antl  is  not  in  the  way  of  an  action  in  the 
nature  of  a  creditor's  bill,  for  the  ])urpose  of  having  an 
assignment  or  disposition  of  jn-operty  by  the  judgment 
debtor,  declared  fraudulent.'^ 

Thus,  an  action  by  a  receiver  will  be  necessary  to  settle 
the  rights  of  the  parties  concerned,  whenever  a  third 
party  is  in  possession  of  the  propertj^  of  the  judgment 
debtor,  claiming  an  interest  therein  adverse  to  such  debtor ; 
or  is  indebted  to  such  debtor,  and  denies  the  debt. 

The  receiver  of  the  property  and  effects  of  a  judgment 
debtor,  unless  restricted  by  s])ecial  order  of  the  court,  has 
general  power  to  sue  for  and  collect  the  debts,  demands, 
&c.,  of  such  debtor.  But  he  ought,  generally,  to  obtain 
leave  before  bringing  the  action,  lest  he  render  himself 
liable  to  be  charged  with  the  costs.^  Such  order  to  bring 
action,  may  be  made  at  the  time  of  the  appointment  of 
the  receiver,  or  afterwards.  But  it  has  been  held  that 
when  the  action  was  brought  in  good  faith  without  leave 
of  the  court,  even,  he  shall  not  be  made  liable  for  costs, 
(that)  he  shall  stand  upon  the  footing  of  an  executor  or 
administrator  prosecuting  in  behalf  of  the  estate.'* 

As  the  receiver  represents  the  interest  of  the  creditors, 
he  may  maintain  an  action  in  the  nature  of  a  creditor's 
bail  to  set  aside  a  fraudulent  assignment,  by  the  debtor, 
or  to  remove  any  simihir  obstruction  in  the  way  of 
securing  the  proper  api)lication  of  the  debtor's  property  to 
the  payment  of  the  judgment.^ 


"  Callin  V.  Doughty,  ]  2  How..  457.  (459).     *  9  How.,  34.3. 

»  Goodyear  v.  Belts,  1  How.,  187.  '  9  N.  Y.,  142  j  10  Abb.,  197  ;  15  How., 

*  See  ante,  vol.  1,  p.  189,  rule  92.  335. 


108  ADMINISTRATION  OF  CIVIL  JUSTICE. 

Costs. 

On  the  examination  of  the  debtor  in  these  proceedings, 
if  no  projjerty  is  discovered,  the  plaintiff  will  be  ordered 
to  pay  costs  to  the  debtor,  unless  a  sufficient  excuse  is 
shown,^  and  a  counsel  fee  is  a  proper  item  of  costs.^  Wit- 
ness fees  are  also  allowable,  and  thej^  may  be  insisted  on 
preliminary  to  an  attendance  or  examination,  as  in  other 
cases.^  The  application  for  costs  may  be  made  at  any 
time  before  the  final  order  of  the  judge  for  the  api)licatioa 
of  the  fund  in  the  hands  of  the  receiver.* 

The  costs  in  a  proceeding  as  for  contempt  may  be  added 
to  those  of  supplementary  proceedings,  and  the  defendant 
be  ordered  to  stand  committed  until  full  payment  is 
made/ 

Orders,  how  enforced. 

Orders  of  the  court,  or  of  the  judge,  made  in  these  pro- 
ceedings, are  enforced  by  punishing  disobedience  of  them 
as  contempt  of  the  authority  of  the  officer,  or  of  the  court, 
as  the  case  may  be.  The  ijower  thus  to  punish  is  given 
to  the  judge,  by  the  Code.*^  Its  language  is:  ''  If  any  per- 
son, i)arty  or  witness  disobey  an  order  of  the  judge  or 
referee,  duly  served,  such  person,  party  or  witness  may 
be  punished  by  the  judge  as  for  a  contempt."  And  in  all 
cases  of  commitment  under  this  chapter,  the  person 
committed  maj',  in  case  of  inability  to  jjerform  the  act 
required,  or  to  endure  the  imprisonment,  be  discharged 
from  imprisonment  by  the  court  or  judge  committing  him, 
or  the  court  in  which  the  judgment  was  rendered,  on  such 
terms  as  maj^  be  just.''  The  further  consideration  of  this 
subject  will  be  postjjoned  to  the  chapter  on  Contempts. 


»  3  Sandf.,  725;  S.  C,  1  Code  R.  (K  *  13  How.,  382. 

S.),  113.  *3  Sandf.,  670. 

«  11  How.,  446.  "  Code,  §  302. 
*  4  How.,  190 ;  seo  also  Code,  §  301. 


APPEAL  AND  OTHER  MODES  OF  REVIEW.  109 


CHAPTER  V. 

APPEAL  AND   OTHER  MODES   OF   REVIEW. 

General  observations. 

Under  the  new  organization  of  the  court,  the  former 
Court  for  the  Correction  of  Errors  has  been  abol- 
ished and  the  Court  of  Appeals  has  taken  its  place.  It 
is  authorized  to  review  upon  appeal  every  actual  determi- 
nation made  at  general  term  by  the  supreme  court,  the 
superior  court  of  the  city  of  New  York,  or  the  court  of 
common  pleas  for  the  city  and  county  of  New  York,  or 
the  superior  court  of  the  city  of  Buffalo:  1.  In  a  judgment 
in  an  action  commenced  in  such  courts  or  brought  there 
from  another  court;  also  upon  an  appeal  from  sucli  judg- 
ment to  review  any  intermediate  order  involving  the 
merits  and  necessarily  affecting  the  judgment;  2.  Also,  to 
review  any  order  affecting  a  substantial  right  made  in  such 
action  where  such  order,  in  effect,  determines  the  action 
and  prevents  a  judgment  from  which  an  appeal  might  be 
taken,  or  when  such  order  grants  or  refuses  a  new  trial ;  3. 
Also  to  review  any  tiual  order  affecting  a  substantial  right 
made  in  any  si)ecial  i)roceeding,  or  upon  a  summary  appli- 
cation in  an  action  after  judgment.^  And  such  court,  on 
such  review,  has  power  to  reverse,  affirm  or  modify  the 
judgment  or  order  appealed  from,  in  whole  or  in  part,  as 
to  any  or  all  of  the  parties  thereto.^ 

The  former  Court  for  the  Correction  of  Errors  had 
full  power  to  correct  and  redress  all  errors  that  happened 
in  the  court  of  chancery  or  in  the  supreme  court.^  And 
for  that  purpose,  it  was  the  duty  of  that  court  to  examine 
and  correct  all  errors  that  were  assigned  or  found  in  any 
record  brought  from  the  supreme  court,  or  in  any  i)rocess 
or  proceeding  touching  the  same;  and  thereupon  to  review 
or  aflirm  the  judgment  of  the  supreme  court,  or  to  give 
such  other  judgment  as  the  law  might  allow.* 


»  Code,  §  11.  =■  2  R.  S.,  IGG,  §  24;  2  N.  Y.  S.   at  L. 

»  Code,  §  12.  « Idem,  §  25. 


110  ADMINISTRATION   OF   CIVIL  JUSTICE. 

This  court,  like  the  court  of  appeals,  wliicli  now  performs 
its  duties  and  exercises  its  functions,  onlj^  acted  upon  the 
actual  and  final  jndgments  and  orders  of  the  supreme  court, 
&c.  Its  rule  was  that  every  liual  or  definitive  sentence  or 
decision  of  the  supreme  court,  by  which  the  merits  of  the 
cause  were  determined,  although  not  technically  a  judg- 
ment, or  a  proceeding-  capable  of  being  enrolled,  so  as, 
technically,  to  constitute  a  record,  was,  nevertheless,  a 
judgment  within  the  meaning  of  the  law,  and  as  such, 
subject  to  review  in  that  conrt.^  But  mere  interlocutory 
orders,  or  such  as  were  only  auxiliary  to  the  prosecution 
of  the  action,  were  not  such  determinations  as  could  be 
thus  reversed.^ 

This  court,  like  tlie  court  of  appeals,  was  strictly  an 
appellate  court,  established  for  the  re-examination  and 
correction  of  erroneous  decisions  actually  made  by  other  tri- 
bunals upon  questions  actually  presented  to  them  for  their 
detirmination;  and  the  rules  of  practice  were  such  that  every 
conceivable  error  aflbrding  a  sufKcieut  ground  for  review, 
which  could  occur  in  the  proceedings  in  the  inferior  court, 
could  be  distinctly  presented  to  such  inferior  court,  by  the 
part}'  thereby  aggrieved,  for  their  decision  in  the  first  in- 
stance; and  which,  if  decided  against  the  party,  he  could 
properly  bring  before  this  court  for  review.^ 

The  same  general  distinction,  as  to  the  land  of  eiTors  to 
be  corrected  in  the  highest  appellate  court,  and  those  to  be 
corrected  in  the  inferior  courts,  is  also  maintained.  In 
the  language  of  Chancellor  Walworth,^  "  there  is  a  mani- 
fest ditference  to  be  observed  between  the  ijroceedings  on 
writs  of  error  in  this  court — the  court  for  the  correction 
of  errors — and  the  proceedings  of  the  supreme  court  on 
writs  of  error  to  inferior  tribunals.  The  supreme  court 
are  bound  to  correct  all  errors  in  the  proceedings  of  infe- 
rior tribunals,  which  are  brought  before  them,  whether 
they  relate  to  decisions  actuallij  or  nominalhj  made  by  the 
court  below;  or  to  matters  out  of  the  record,  usually 
denominated  errors  of  fact.  But  in  the  organization  of 
this  court,  it  was  evidently  the  intention  of  the  framers 
of  the  constitution,  that  it  should  be  strictly  an  appellate 
court,  for  the  re-examination  and  correction  of  erroneous 


»  12  Johns.,  31;  6  Id.,  337;  see  also,     "  12  Johns.,  31. 
18  N.  Y.,  4U.  '2  Weed.,  145. 


APPEAL  AND   OTHEE  MODES   OF   REVIEW.  Ill 

decisions  actually  made  by  other  tribunals,  upon  questions 
actually  presented  to  them  for  their  determination."^ 

By  the  Code,  writs  of  error  in  civil  actions  are  abolished, 
and  the  only  mode  of  reviewing-  a  judgment  or  an  order 
in  such  actions,  is  by  appeal ;'  and,  for  such  purpose,  any 
party  aggrieved  by  the  decision  can  bring  his  appeal.' 
This  provision  of  the  Code,  however,  does  not  extend  to 
proceedings  on  mandamus  or  prohibition,*  therefore  the 
I)roper  method  of  reviewing  the  determinations  of  the 
supreme  court  in  such  proceedings,  prior  to  the  enact- 
ment of  1859,^  was  by  wr>!;  of  error.'^  But,  since  the  law 
of  1859,  the  method  of  reviewing  such  determination  is  by 
appeal."  And  a  judgment  on  an  award  is  also  to  bo 
reviewed  by  writ  of  error.'  The  right  of  appeal  is 
also  given  in  the  case  of  any  judgment  or  order  in  a 
special  proceeding  f  but  that  right  is  held  to  be  confined 
to  a  review  of  the  decision  of  the  special  term,  by  the 
general  term,  of  the  same  court ;  and  does  not  extend  to 
cases  where  the  action  of  a  court  of  ui/f-y/or  jurisdiction  is 
sought  to  be  reversed  in  a  highei-  court.'"  That  the  reme- 
dies in  use  antecedent  to  the  Code  must  be  resorted  to  in 
such  cases. 

When  cm  appeal  ioill  lie  from  a  judgment  or  order. 

A  judicial  determination  is  essential  to  the  validity  of 
an  appeal.^'  And  the  appeal  will  not  lie  until  the  suit  is 
at  an  end  in  the  court  of  original  jurisdiction  ;'^  and  the 
judgment  must  have  been  tinal,  so  that  there  could  be  no 
further  litigation  under  its  provisions."  And  it  should  be 
the  actual  (letermination  of  the  general  term  of  the  court 
below.^*  A  mere  fonnal  judgment  submitted  by  stipula- 
tion to  the  general  term  of  the  sui)reme  court,  will  not  be 
sufficient.^' 

A  judgment  is  not  final  so  long  as  a  question,  which  it 
was  one  of  the  objects  of  the  suit  to  determine,  remains 


'  2  Wend.,  145;  2  Cow.,  31 ;  12  Jolins..  493;  13  Johns..  361 ;  19  N.  Y.,  534;  2 
N.  y.,  188;  15  N.  Y.,  593-  G  How.,  230. 

«  Code,  §  323 ;  Code,  §  457.  "  L.  1854,  cli.  270. 

'Code,  §  325;  9  How.,  152;  1  Abb.,  "  IG  How.,  57G;  4  Id.,  432. 
155;  2  Abb.,  209.  "  22  N.  Y.,  67. 

•  Code,  §471.  "4X.Y.,  415;  15  N.  Y.,  593. 
»  L.  1859,  cl).  174,  p.  421.  "  19  N.  Y.,  534. 

•  18  N.  Y.,  487.  "  2N.  Y.,  188;  15  N.  Y.,  593. 
"•  20  N.  Y.,  529.  "  6  How.,  280. 

•  19  N.  Y.,  584. 


112  ADMINISTRATION  OP  CIVIL  JUSTICE. 

undetermined.^  But  an  order,  which  is  all  the  determina- 
tion a  cause  can  receive,  is,  in  its  nature,  final.  Thus,  an 
order  awarding  a  fund,  and  which  embraces  every  matter 
which  would  have  belonged  to  a  final  decree  in  an  inter- 
pleader suit,  is,  in  substance,  a  judgment  under  the  Code 
from  which  an  appeal  will  lie.^  So  a  judgment  may- 
become  final  by  a  confirmation  of  the  report  of  the  referee, 
where  no  questions  are  reserved.^ 

Questions  of  fact  are  not  reviewable  in  the  court  of 
appeals.  The  general  term  of  the  supreme  court  has  the 
power  of  determining  finally  the  correctness  of  decisions 
of  fact,  made  by  a  referee  or  a  single  judge  ;*  although 
questions  arising  out  of  facts  found,  may  be  reviewed  on 
appeal.^  But  an  appeal  from  the  supreme  court  is  upon 
the  law  only.^ 

Tlie  several  classes  of  orders  from  which  an  appeal  lies 
to  the  court  of  appeals,  embrace  those  which,  in  their 
effect,  are  in  the  nature  of  a  final  judgment,  or  which,  in 
some  manner,  involve  the  merits  of  tlie  cause  and  neces- 
sarily affect  the  judgment  to  be  rendered,  or,  which  deter- 
mine the  action  or  prevent  a  judgment  from  which  an 
appeal  might  be  taken.  A  final  order  affecting  a  sub- 
stantial right  made  in  a  special  proceeding,  or  upon  a 
summary  application,  in  an  action  after  judgment,  is  like- 
wise appealable ;  but  in  this  latter  case,  the  order  must  be 
based  upon  a  judgment,  and  its  validity  must  be  assumed.' 
As,  when  the  supreme  court  had  set  aside  a  judgment  and 
execution  for  irregularity,  leaving  the  other  proceedings 
in  the  action  unaffected.  If  the  action  had  ever  been 
commenced,  the  order  left  it  still  pending  and  undeter- 
mined; and,  hence,  it  did  not,  in  elfect,  or  otherwise, 
determine  the  action.  If  the  action  had  not  been  legally 
commenced,  the  order  setting  aside  the  judgment  and 
execution  was  manifestly  right,  and  should  be  affirmed, 
and  in  either  event,  the  appellant  had  no  standing  in  the 
appellate  court.^ 

An  appeal  will  lie  from  an  order  reversing  a  surrogate's 
decision  admitting  a  will  to  probate,'  or  from  an  order  dis- 
missing an  appeal  from  a  judgment  at  special  term,  as 

'  19  N.  Y.,  534;  15  Id.,  593.  •  18  N.  Y.,  573;  20  Id.,  528;  14  Id., 

»  18  N.  Y.,  484.  310;  19  Id.,  207. 

»14N.  Y.,  415.  '16N.  Y.,  242;  2  Id.,  186;  3  Id.,  341 ; 

♦  7  N.  Y,  530 ;  18  Id.,  573 ,  20  Id.,  251 ;     11  Id.,  274. 

17  Id.,  34;  Code.  §  271,  sub.  3.      '  16  N.  Y.,  244, 

•  18  N.  Y,  484.   '  •  23  N.  Y.,  J7. 


APPEAL   AND   OTHER  MODES   OF  REVIEW.  113 

being  too  late,'  or  from  an  order  reversing  a  surrogate's 
decree,  dismissing  proceedings  on  a  citation  for  an  account- 
ing.^ So,  from  an  order  which  is  all  the  determination  a 
cause  can  receive,  and  which  is  tiual  in  its  nature.^  So  an 
order  which  vacates  a  judgment  finally,  by  deciding  its 
merits,  is  one  which  prevents  a  judgment  in  an  action,* 
and  is  appealable. 

A  final  order  at  general  term,  in  proceedings  to  compel 
infant  heirs  to  perform  specifically  the  contract  of  an  an- 
cestor,^ or  an  order  charging  costs  on  a  party  commencing 
Buit  in  the  name  of  a  nominal  plaintiff,  being  a  final  order 
made  upon  summary  application  after  judgment,"  or  an 
order  of  the  supreme  court  vacating  satisfaction  and  re- 
storing the  judgment,'  are  appealable  under  the  third 
subdivision  of  section  11  of  the  Code. 

Prior  to  the  amendments  of  1857,"  an  order  reversing  a 
judgment  and  awarding  a  new  trial  was  not  deemed  final, 
and,  therefore,  was  not  appealable.^  But  the  amendment 
of  1857  [u-ovided  that  an  order  granting  or  refusing  a  new 
trial  should  be  appealable.  It  has  been  held,  however,  that 
an  appeal  should  not  be  taken  from  such  an  order,  unless 
it  can  be  shown  that  the  order  is  founded  on  erroneous 
conclusions  of  law;  (and)  that  the  case  should  negative 
any  inference  that  the  court  granted  the  new  trial,  because 
of  difierent  conclusions  of  facts  from  those  found  in 
the  original  trial.'"  And  the  party  appealing,  and  stipu- 
lating for  final  judgment  in  case  the  order  is  affirmed, 
concedes  to  his  adversary  every  conclusion  of  fact  ever  so 
slightly  supported  by  the  evidence,'^  and  an  appeal  to  this 
court  from  an  order  granting  a  new  trial  lies  only  where 
the  party  obtaining  the  verdict  is  willing  to  fail  wholly 
if  he  cannot  maintain  the  same.'^  Where  the  order  is  for 
a  new  trial,  unless  the  plaintiff  will  remit  a  part  of 
the  verdict,  he  cannot  appeal  and  retain  the  benefit  of  tlio 
alternative  judgments.''^ 

No  api)eal  lies  from  those  determinations  or  orders  which 
rest  in  the  discretion  of  the  court  making  them.     Thus,  an 


'  20  N.  Y.,  525.  "  2  Lnws  1857,  cli.  723 ;  sec  Code,  §  11, 

'  3  N.  Y.,  54G.  sub.  2. 

•18N.  Y.,  484.  'SN.  Y.,  545. 

«  17  N.  Y.,  158.  "  20  N.  Y..  522. 

»  11  N.  Y.,  52.  "  19  N.  Y.,  207. 

•  12N.  Y.,  32.  "  18  N.  Y.,  493. 

'  19  N.  Y.,  581. 

II.— 15 


114  ADMINISTRATION   OF   CIVIL   JUSTICE. 

order  setting  aside  a  sale  in  a  foreclosure  siiit,^  an  order 
setting-  aside  a  verdict  for  excessive  damages,^  or  an 
order  of  the  supreme  court  refusing  to  set  aside  an  execu- 
tion issued  without  leave  after  five  years,^  or  orders  grant- 
ing, continuing  and  dissolving  a  temporary  injunction,''  are 
each  within  the  discretion  of  the  court  and  not  appealable. 

So,  also,  orders  on  questions  of  practice,  being  witbin 
the  discretion  of  the  court,  are  not  reviewable.^  But  a 
refusal  to  exercise  a  discretionary  power,  on  the  ground 
that  it  does  not  exist,  is  error  and  may  be  reviewed." 

No  appeal  lies  from  a  determination  of  the  court  whose 
decision  in  the  matter  is  made  tinal  by  statute.  Thus,  in 
proceedings  to  assess  damages  on  the  taking  of  lands  for 
railroad  corporations,  the  order  of  the  supreme  court,  on 
appeal,  is  made  final  and  conclusive.  It  is  the  intention 
of  the  act^  to  provide  in  itself  a  comi)lete  system  for  ascer- 
taining the  value  of  the  land  in  such  cases,  and  commits 
the  determination  thereof  to  the  discretion  of  the  supreme 
court,  from  which  there  is  no  appeal.^  The  same  is  true 
under  the  thirty-seventh  section  of  the  plankroad  company 
act;^  the  decision  of  the  supreme  court  is  final, ^"  and  where 
the  statute  provides  that  the  decision  of  the  supreme  court 
shall  be  final  and  conclusive,  there  is  no  appeal  to  the 
court  of  appeals.'' 

Important  changes  were  made  by  the  Code  in  reference 
to  the  practice  in  reviewing  judgments  and  orders.  Writs 
of  error  are  abolished,  and  the  only  mode  of  reviewing  a 
judgment  or  order  in  a  civil  action  is  that  prescribed  by 
the  Code.'^ 

Errors  of  fact  ^  how  revieiced. 

In  cases  of  trial  by  jmy,  the  correctness  of  their  verdict, 
or  the  accuracy  of  the  decisions  of  the  judge  ui)on  the 
trial,  may  be  reviewed  without  an  appeal;  the  former  by 
a  motion  upon  the  judge's  minutes  made  at  the  circuit  at 
wliich  the  cause  was  tried,  to  set  aside  the  verdict  and  for 
a  new  trial,  or  upon  motion  at  special  term,  upon  a  case 
made,  or  by  procuring  an  order  at  the  circuit  that  the  ex- 


'  23  N.  Y.,  160.  ■'  L.  1850,  p.  211,  §  18. 

»  22  N.  Y.,  517;  14  Id.,  310.         "  11  N.  Y.,  276. 

^  18  N.  Y.,  150;  Code,  §  174.         •  L.  1847,  ch.  210. 
*  1  N.  Y.,  53.3.  "•  10  N.  Y.,  353. 

°  17  N.  Y.,  72.  "  12  N.  Y.,  406. 

«  20  N.  Y.,  81.  "  Code,  §  323. 


APPEAL   AND   OTHER  MODES   OP   REVIEW.  115 

ceptions  be  heard  in  the  first  iustance  at  the  general  term, 
wliere  a  motion  can  be  made  upon  a  case  containing-  the 
exceptions  for  a  new  trial.  So  where  a  specific  question 
of  fact  involved  in  an  action,  other  than  that  of  the  Avhole 
issue,  or  where  any  question  of  fact  not  put  in  issue  but 
ordered  to  be  tried  by  a  jury  or  a  referee,  has  been  ordered 
and  a  trial  has  been  had,  if  either  party  desire  to  apply 
for  a  new  trial,  on  the  ground  of  an  error  of  the  jury  or 
referee,  or  on  the  ground  that  the  verdict  or  report  is 
against  evidence,  a  motion  may  be  made  at  special  term, 
on  a  case  or  a  case  and  exceptions,  for  a  new  trial. ^  In 
case  it  is  desired  to  review  the  report  of  a  referee,  other 
than  one  determining  tlie  issue,  exceptions  thereto  must 
be  filed  and  served  within  eight  days  after  notice,  in 
writing,  of  the  filing  the  same. 

A  certiorari  also  lies,  in  a  great  variety  of  cases,  to  re- 
view the  decisions  of  courts  and  officers.  An  appeal  is  in 
the  nature  of  a  new  action  brought  by  the  party  ap})ealing.^ 

Who  may  appeal.  Any  party,  or  any  one  of  several  par- 
ties conceiving  himself  aggrieved,  may  appeal.'  This 
embraces  only  such  persons  as  are  technically  parties  to 
the  action,  or  their  representatives.^ 

Parties,  how  (lesif/nated.  The  party  appealing  is  called 
the  a[>pellant,  and  the  adverse  party  the  respondent,  but 
the  title  of  the  action  should  not  be  changed  in  consequence 
of  the  appeal;  that  is,  the  plaintiff  must  continue  to  bo 
named  lirst  in  each  entitling  of  the  cause.^  The  attorneys 
in  the  action  or  proceeding  froui  a  determination  in  which 
an  ai)j)eal  is  brought,  are  deemed  to  be  continued  on  the 
appeal  until  others  are  substituted. 

Appeal,  lioiv  made.  An  ap})eal  is  made  by  the  service  of 
a  notice  in  writing  on  the  attorney  of  record  of  the  adverse 
I)arty  in  the  court  below,  and  on  the  clerk  with  whom  tho 
judguKjnt  or  order  appealed  from  is  entered,  stating 
fill;  appeal  from  the  same  or  some  part  thereof.*^  Tho 
notice  of  api)eal  nuist  be  given  properly  and  in  good 
faith,  within  the  time  allowed  by  law  for  appealing,  or 
the  right  is  lost ;  the  court  cannot  relieve  the  party  who 
has  omitted  this;  but  where  a  party  shall,  in  good  faith 


'  S.  C.y  Rule  33.  ■*  Martin  v.  Kanouse,  2  Abb.  Tr.  R.,  390, 

»  Pratt  V.  Allen,  19  How.  Pr.  R.,  450.  '  Code,  §  .^2G. 

'  Code,  §  325  ;  J/a««(?«  V.  ./ywes,  9  How.  "Code,    §327;    Triiyp   v.    De   Bow,    5 
Pr.  R.,  152.  How.,  114. 


IIG  ADMINISTRATION   OF   CIVIL  JUSTICE. 

and  within  tbe  proper  time,  give  notice  of  appeal,  and 
Bliall  omit,  through  mistalie,  to  do  any  other  act  necessary 
to  perfect  the  appeal,  or  to  stay  proceedings,  the  court  will 
permit  an  amendment.*  The  notice  of  appeal  may,  like 
liny  other  notice,  be  served  upon  the  attorney  by  mail ;' 
but  the  provision  of  the  Code  authorizing  mail  service 
does  not  ai)ply  to  the  clerk;  upon  him  the  service  should 
be  personal;  at  least  it  should  be  shown  that  the  clerk  has 
received  the  notice  in  due  time."  The  time  to  bring  an 
appeal  cannot  be  extended  beyond  the  time  allowed  by 
law;  and  the  failure  properly  to  serve  notices  of  ai)peal 
within  the  time  allowed,  renders  the  appeal  a  nullity.* 
Although  an  appeal  is  in  most  respects  regarded  as  a  new 
suit,  the  notice  of  appeal  is  not,  in  our  opinion,  an  original 
process  by  which  a  suit  is  commenced,  within  the  provisions 
of  the  act  of  congress  to  provide  internal  reveiuie,  and 
does  not,  therefore,  need  to  have  a  revenue  stamp  atHxed 
to  it.-' 

Judgment  on  appeal.  Upon  an  appeal  from  a  judgment, 
the  court  may  review  any  intermediate  order  involving 
the  merits,  and  necessarily  affecting  the  judgment,  and 
may  reverse,  affirm  or  modify  any  judgment  or  order 
appealed  from,  in  the  respect  mentioned  in  the  notice  of 
appeal,  and  as  to  any  or  all  of  the  parties  ;  and  may,  if 
necessary,  order  a  new  trial."  Only  such  parts  of  the 
judgment  or  order  as  are  appealed  from  can  be  reversed  ;'' 
and  where  there  are  several  parties,  and  the  case  is  one 
•where  separate  judgments  would  have  been  proper  in  the 
court  below,  the  judgment  may  be  affirmed  as  to  one 
party,  and  reversed  and  a  new  trial  ordered  as  to  an- 
other." So,  where  one  of  several  parties  against  whom 
a  judgment  is  entered  appeals,  the  court  may  reverse  the 
judgment  as  to  him,  and  allow  it  to  stand  as  to  the  other. 
So,  where  there  are  distinct  items  embraced  in  one  action, 
the  court  may  affirm  as  to  one  item  and  reverse  as  to 
others.'* 

When  the  judgment  is  7'eversed  or  modified.  The  appel- 
late court  may  make  complete  restitution  of  all  property 


'  Code,  §  327.  «  Code.  §  329  and  330. 

»  Code,  g  408.  '  Kel.sey  v.  Weste7-n.  2  N.  Y.,  500. 

'  Crittenden  v.  Adams,  5  How.,  310.  '  2  Sold.,  86;  4  Seld.,  107. 

♦  Wail  V.  Van  Allen,  22  N.  Y.,  319.  •  Fields  v.  MoreU,  15  Abb.,  6. 

*  Jackson  v.   Allen,  2G   How.   P.  R., 

119. 


APPEAL  AND  OTHER  MODES  OP  REVIEW.  117 

and  rights  lost  by  the  erroneous  judgment,  and  may  allow 
the  prevailing  party  the  costs  from  the  commencement  of 
the  action.^ 

Irregularities  in  appeal.  If  the  appellate  court  has  no 
jurisdiction  to  hear  the  appeal,  the  objection  may  bo 
taken  on  the  argument ;  but  Avhere  there  is  merely  an 
irregularity  in  bringing  the  appeal  alleged,  the  objection 
can  only  be  taken  by  motion  to  set  aside  or  dismiss  the 
appeal.^  And  when  it  is  intended  to  move  on  an  irregu- 
larity, it  should  be  done  before  the  respondent  appears  in 
the  cause  ;  for  if  the  respondent's  attorney  gives  notice  of 
retainer,  or  does  any  other  act  submitting  to  the  jurisdic- 
tion of  the  appellate  court,  he  might  be  deemed  to  have 
waived  the  alleged  irregularity.^  Where  an  api)eal  is  not 
well  brought,  it  may  be  dismissed  upon  the  appellant's  own 
motion.^  The  motion  to  dismiss  an  appeal  should  be 
made  in  the  appelhite  court,  for  it  is  the  province  of  that 
court  to  determine  whether  the  case  is  one  in  which  it  has 
jurisdiction,  and  whether  questions  are  regularly  brought 
into  that  court.^ 

How  continued.  If  either  party  dies  during  the  pendency 
of  an  ai)peal,  the  motion  to  continue  the  cause  in  the  name 
of  the  legal  representative,  should  be  made  in  the  appellate 
court.'' 

Apiyeal  wlien  ivaived.  When  a  party  has  stipulated  that 
the  determination  shall  be  final,  he  will  be  deemed  to  have 
waived  his  right  of  appeal.'  So  where  an  order  of  refer- 
ence is  granted,  upon  the  moving  party  paying  the  costs 
of  the  term,  the  other  party,  by  accepting  the  costs,  waives 
the  right  to  api)eal,  but  payment  of  the  judgment  does 
not  waive  such  right.^ 

Judgments  hy  default.  An  appeal  will  not  lie  from  a 
judgment  by  default.^. 


'  Code,  380.  '  Toivnsend  v.  Masterton  Co.,   15  N.  Y, 

"  Parjitt  V.  Warner,  13  Abb.  P.,  471.  587. 

*  Fltjnn  V.  Hudson  R.   R.  Co.,  6  How.  *  Lewis  w  Irving  Ins.  Co.,  15  Abb.  P., 

P.  R.,  308;   Cuoley  V.  Lawrence,   12  140;  Radway  v.   Graham,  4  Abb. 

How.  P.  R.,  176.  P.,  4G8. 

*  Burnett  v.  Harkness,  4  How.  P.  R.,  1 58.  "*  Dorr  v.  Birge,  8  Barb.,  35 1  ;   Henry  v. 
'' Barnum  v.  Seneca  Co.  Bank,  G  How.  Cuyler.   17    Job ns.,  469;  Strong  v. 

P.  R.,  82.  Hardenburgh,  25  N.  Y.,  428. 

*  Hastings  v.  McKinley,  8  How.  P.  R., 

175. 


118  ADMINISTRATION  OF  CIVIL  JUSTICE. 


CHAPTER  VI. 

APPEALS  TO  THE  COURT  OF  APPEALS. 

Ill  tvhat  cases.  The  cases  in  wliicli  an  appeal  may  be 
taken  to  the  court  of  appeals,  have  already  been  noticed.^ 

When  from  a  judgment.  An  appeal  does  not  lie  from  a. 
judgment  unless  it  is  the  final  judicial  determination  of 
the  general  term  of  the  court  in  which  the  judgment  is 
entered,^  but  where  all  the  questions  of  law  have  been 
determined  by  the  general  term,  and  the  case  is  sent  back 
and  judgment  is  given  b}^  a  single  judge,  on  a  subsequent 
trial,  it  seems  a  judgment  may  be  taken  directly  to  the 
court  of  appeals  from  that  judgment.^ 

A  judgment  is  not  final  so  long  as  there  may  be  any 
further  litigation.*  Nor  where  it  is  for  the  sale  of  lands, 
and  depositing  of  proceeds  in  accordance  with  the  report 
to  be  made  on  a  reference  therein  ordered  f  nor  where  the 
answer  sets  up  several  distinct  defenses,  to  two  of  which 
a  demurrer  is  filed  and  sustained  both  at  special  and 
general  term  f  nor  w^here  there  remains  undetermined  a 
question  which  it  is  one  of  the  objects  of  tlfe  suit  to 
determine ;'  nor  is  the  determination  in  partition,  declar- 
ing the  rights  of  the  parties,  and  appointing  commis- 
sioners.*' 

To  render  a  judgment  appealable,  it  must  have  been 
upon  an  actual  determination.  A  formal  judgment  made 
pro  forma  lit  general  term  by  consent  is. not  suthcient." 
For  further  remarks  as  to  the  jurisdiction  of  the  court, 
and  cases  in  which  an  appeal  may  be  brought,  reference 
may  be  had  to  the  chapter  upon  the  jurisdiction  of  this 
court.'" 


'  Vol.  1,  p.  5.  '  ThompJcins  v.  Hyatt,  19  N.  Y.,  534. 

'  In  matter  of  Cooper,  22  N.  Y.,  67 ;  '  Paddocks  v.  Springfield  Lis.    Go.,    12 

19  Id.,  534;  4  Id.,  415;   2  Id.,  188;  N.  Y..  591. 

15  Id .  593.  '  Thompkim  v.  Hijatt,  19  N.  Y,  534. 

'  Cook  Dry  Dock  Co.,  18  N.  Y.,  229.  »  Beehe  v.  Grifing,  6  N.  Y.,  465. 

*  Thompkius  v.  Hyatt,   19  N.  Y.,  534;  *  Gridleyv.  Daggett,  6  How.,  P.  R.,  280. 

S'wartwout  v.  Curtis,  4  N.  Y.,  415.  ■"  Ante,  vol.  1,  p.  4. 


APPEALS  TO  THE  COURT  OF  APPEALS.      119 

When  an  appeal  must  he  hrought.  An  appeal  from  a 
judgment  must  be  brought  within  two  years  after  the 
judgment  shall  be  perfected  by  filing  the  judgment  roll ; 
if  from  an  order,  it  must  be  taken  within  sixty  days  after 
written  notice  of  the  order  shall  have  been  given  to  the 
partj'  appealing.^ 

Notice  of  appeal.  The  first  step  in  bringing  an  appeal  is 
to  make  and  serve  a  notice  of  appeal.  This  notice  must 
be  in  writing,  and  should  be  addressed  to  the  attorney  in 
the  court  below,  who  is  deemed  the  attorney  in  this  court 
until  another  has  been  retained  and  notice  thereof  served 
on  the  adverse  party  ;-  and  also  to  the  clerk  of  the  county 
where  the  judgment  or  order  appealed  from  is  entered.^  It 
should  give  notice  that  the  party  appeals  from  such  judg- 
ment or  order,  describing  it  with  sufficient  particularit}'  as 
to  date,  amount,  &c.,  identifying  the  judgment  or  order 
appealed  from.  If  the  a})peal  is  from  an  order  granting  a 
new  trial,  it  must  also  contain  an  assent  on  the  part  of 
the  ai)pellant  that  if  the  order  be  affirmed,  judgment  abso- 
lute shall  be  rendered  against  him.^ 

Notice,  liow  served.  The  notice  must  be  served  in  the 
manner  already  pointed  out.'^ 

Undertaking.  The  undertaking  must  be  in  writing,  and 
must  be  executed  by  at  least  two  sureties.  The  several 
undertakings  required  may  be  in  one  instrument  or  seve- 
ral, at  the  option  of  the  appellant;'^  it  must  be  filed  with 
the  clerk  with  whom  the  judgment  or  order  appealed  from 
was  entered,"  and  a  copy  must  be  served  on  the  attorney 
of  the  adverse  party,  with  the  notice  of  appeal,  including 
the  names  and  residence  of  the  sureties.  An  undertaking 
may  be  waived  by  written  consent  of  the  respondent. 

To  render  an  appeal  effectual  for  any  purpose  wliatever, 
ihn  undertaking  must  be  to  the  effect  that  the  appellant 
will  pay  all  costs  and  damages  which  may  be  awarded  >f  /  ' 
against  him  on  the  appeal,  not  exceeding  t»©""hundred  P'- 
aMi.  feto  dollars,  or  that  sum  must  be  deposited  Avith  the 
■clerk  with  whom  the  judgment  or  order  was  entered,  to 
abide  the  event  of  the  appeal."  If  no  stay  of  proceedings 
is  desired,  this  is  the  only  security  required  in  the  appeal. 

Where  the  judgment  is  for  the  recovery  of  money,  and  a 

'  Code.  §  3:n.  *  Ante,  vol.  2,  116. 

"  C.  of  A.  Rule  7.  •  Code.  §  340. 

'  Code  8  .'527.  '  Code'  §  343. 

*  Code,  g  11.  «  Code,  §§  334,  340. 


120  ADMINISTRATION   OF   CIVIL   JUSTICE. 

stay  is  desired,  the  nndertakiji*,^  must  also  provide  that  if  the 
judgment  appealed  from,  or  any  part  thereof,  be  afhrmed, 
or  the  appeal  dismissed,  the  appellant  will  pay  the  amount 
directed  to  be  paid  by  the  judgment,  or  the  part  of  such 
amount  as  to  which  the  judgment  shall  be  athrmed,  if  it 
be  attirmed  only  in  part,  and  all  damages  which  shall  be 
awarded  against  the  appeHant  upon  the  appeal.^ 

If  the  judgment  he  for  the  delivery  of  documents  or  per- 
sonal property,  and  a  stay  is  desired,  the  undertaking  must 
provide  that  the  sureties  will  pay  such  sum  as  the  court 
or  the  judge  thereof,  or  a  county  judge,  shall  direct,  in 
default  of  the  appellant  obeying  the  order  of  the  appellate 
court  on  the  ai)peal.  The  amount  thus  to  be  mentioned 
in  the  undertaking  can  be  fixed  by  an  ex  parte  motion 
founded  upon  an  affidavit  setting  forth  the  circumstances 
of  the  case. 

In  default  of  such  an  undertaking,  the  things  required 
to  be  assigned  or  delivered  must  be  placed  in  the  custody 
of  such  officer  or  receiver  as  the  court  shall  appoint.^ 

Where  the  judgment  is  for  the  sale  or  delivery  of  real  pro- 
perty, the  execution  of  the  judgment  will  not  be  stayed 
unless  a  written  undertaking  be  executed  on  the  part  of 
the  appellant,  to  the  effect  that  during  the  possession 
of  such  property  by  the  appellant,  he  will  not  commit  or 
suffer  to  be  committed  any  waste  thereon,  and  that  if  the 
judgment  be  affirmed,  he  will  pay  the  value  of  the  use 
and  occupation  of  the  property  from  the  time  of  the 
appeal  until  the  delivery  of  the  possession  thereof,  pursu- 
ant to  the  judgment,  not  exceeding  a  sum  to  be  fixed  by 
a  judge  of  the  court  in  which  the  judgment  was  rendered, 
and  which  shall  be  s]>ecihed  in  the  undertaking.  When 
the  judgment  is  for  the  sale  of  mortgaged  i)remises, 
and  the  payment  of  a  deficiency  arising  upon  the  sale,  the 
undertaking  shall  also  provide  for  the  payment  of  such 
deficiency.^ 

The  sum  to  be  fixed  in  this  undertaking  can  be  ascer- 
tained by  an  ex  parte  motion  to  the  court  upon  an  affidavit 
of  the  facts  and  circumstances  of  the  case. 

If  the  execution  of  a  conveyance  or  other  instrument  is 
directed,  the  judgment  is  not  stayed  by  the  ax)peal  until 
the  instrument  shall  have  been  executed  and  deposited 


»  Code,  §  335.  '  Code,  §  338. 

"  Code,  §  336. 


APPEALS  TO  THE  COURT  OF  APPEALS.      121 

with  the  clerk  with  whom  the  judgment  is  entered,  to  abide 
the  judgment  of  the  appellate  court.^ 

Extent  of  stay.  Whenever  an  appeal  is  perfect  in  a  case 
where  the  judgment  is  for  the  recovery  of  money  or  for 
the  delivery  of  documents,  for  the  execution  of  a  convej'- 
ance  or  other  instrument,  or  for  the  sale  or  delivery  of  the 
possession  of  personal  property,  it  stays  all  proceedings 
in  the  court  below  upon  the  judgment  appealed  from,  or 
upon  the  matter  embraced  therein,  but  the  court  below 
may  proceed  upon  any  other  matter  included  in  the  action 
and  not  afiected  by  the  judgment  the  same  as  if  no  appeal 
Lad  been  brought.^  And  an  ai)peal  is  deemed  perfected 
under  this  section  when  the  proper  undertaking  for  a  stay 
has  been  filed  and  notice  thereof  given,  and  the  notice  of 
appeal  has  been  served  on  the  clerk  and  the  attorney 
of  the  adverse  party. 

When  seciiritij  may  he  dispensed  with.  When  the  appel- 
lant is  an  executor,  administrator,  trustee  or  other  person 
acting  in  another's  right,  thecourt  in  which  the  judgment  ap- 
pealed from  is  entered  may,  in  its  discretion,  dispense  with 
or  limit  the  security  required  to  stay  proceedings  where 
the  judgment  appealed  from  is  for  the  recovery  of  money, 
or  where  the  judgment  directs  the  assignment  or  delivery 
of  documents  or  personal  property,  or  the  sale  or  deliv- 
ery of  possession  of  real  property,  but  in  no  case  is  any 
authority  given  to  waive  the  undertaking  for  two  hundred 
and  fifty  dollars  heretofore  mentioned.^ 

Where  amount  of  security  limited  or  security  waived. 
Where  the  judgment  directs  the  assignment  or  delivery  of 
documents  or  personal  property,  the  execution  of  a  con- 
veyance or  other  instrument,  or  the  sale  or  delivery  of 
possession  of  real  property,  and  the  amount  of  security 
required  would  exceed  fifty  thousand  dollars,  the  court  in 
which  the  judgment  is  entered  may  limit  the  security  to 
an  amount  not  less  than  that  sum."  An  undertaking  may 
be  waived  by  a  written  consent  on  the  part  of  the  respond- 
ent.^ 

Undertakings  must  he  filed.  The  undertaking  must  be 
filed  with  the  clerk  with  whom  the  jndgment  or  order 
appealed  from  was  entered,^  and  this  should  be  done  at  the 
time  of  the  service  of  the  notice  of  appeal  upon  such  clerk. 


•  Code,  §  337.  '  Code,  §  334. 

»  Code,  §  339.  *  Code,  §  343. 

XL— 16 


122  ADMINISTRATION   OF   CIVIL  JUSTICE. 

.  Surety  to  justify.  Au  undertaking  on  appeal  is  of  no 
effect  unless  it  be  accompanied  by  an  affidavit  of  the 
sureties  that  they  are  each  worth  double  the  amount  speci- 
fied therein,'  and  in  all  cases  the  execution  of  the  under- 
taking- should  be  acknowledged. 

When  stay  where  no  undertaking  is  given.  In  other  cases 
than  those  we  have  mentioned,  where  security  is  required, 
the  perfecting  of  an  appeal  by  giviug  the  undertaking  for 
two  hundred  and  fifty  dollars,  which,  as  stated,  is  required 
in  all  cases,  stays  all  proceedings  upon  the  judgment 
ajjpealed  from.^ 

As  to  perishable  2)roperty.  Where  the  judgment  appealed 
from  directs  the  sale  of  perishable  property,  the  court  in 
which  the  judgment  was  entered  may,  notwithstanding 
the  appeal,  order  the  property  to  be  sold  and  the  pro- 
ceeds thereof  to  be  deposited  or  invested,  to  abide  the 
judgment  of  the  appellate  court.^ 

Stay  on  appeals  from  orders.  There  does  not  seem  to  be 
any  i^rovisions  of  statute  staying  i)roceedings  upon  an 
order  appealed  from.  In  these  cases  the  appeal  does  not 
operate  as  a  stay  of  proceedings,  and  where,  in  such  a 
case,  a  stay  is  desired,  a  motion  for  that  purpose  should 
be  made  in  the  court  granting  the  order,  and  that  court 
may,  on  such  terms  as  it  shall  think  proper  as  to  security, 
or  otherwise,  grant  the  stay. 

J^zceptiny  to  sureties.  If  the  respondent  is  not  satisfied 
with  the  sureties,  he  may,  at  any  time  within  ten  days 
after  service  upon  him  of  the  notice  of  appeal,  or  after 
the  tiling  of  the  undertaking,  serve  upon  the  appellant's 
attorney  a  notice  to  the  effect  that  he  excepts  to  the 
sufficiency  of  the  sureties.'*  The  appellant's  attorney 
should  thereupon  give  notice  that  the  sureties  will  attend 
for  the  purpose  of  justification,  before  a  judge  of  the  court 
below,  or  a  county  judge  (naming  him)  of  the  county 
where  such  sureties  reside,  at  a  time  and  place  within  the 
county  where  such  sureties  reside,  to  be  therein  specified. 
The  time  specified  in  the  notice  for  justification,  must  not 
be  more  than  ten  days  from   the  time  of  resi)ondent's 


'  Code,  §  341. 

'  Code,  §  342 ;    Griswold  v.  Fowler,  13  Abb.  P.  R.,  348  ;  People  ex  rel.  Thomas  v. 
Conneis  dtc,  25  How.  P.  R.,  257. 
=  Code,  §  342.  , 

*  Code,  §  341 ;    Webster  v.  Stephens,  3  Abb.  P.  R.,  227. 


APPEALS  TO  THE  COURT  OF  APPEALS.      123 

service  of  notice,  excepting  to  tlie  sureties,  and  the  justi- 
fication shall  be  upon  a  notice  of  not  less  than  tive  days.^ 

Justification  of  sureties.  For  the  purpose  of  justitication, 
each  of  the  bail  shall  attend  before  the  judge  at  the  time 
and  place  mentioned  in  the  notice,  and  may  be  examined 
on  oath  on  the  part  of  the  respondent,  touching  his 
suthciency,  in  such  manner  as  the  judge  shall  think  proper. 
The  examination  shall  be  reduced  to  writing,  and  sub- 
scribed by  the  bail  if  the  respondent  desire  it.  The  party 
excei)ting  is  the  actor  in  this  proceeding,  and  no  steps  are 
necessary  to  be  taken  before  the  officer,  except  on  his 
requisition,  and  he  waives  his  exception  by  omitting  to 
attend  pursuant  to  the  notice,  although  the  sureties  also 
fail  to  attend.'^  If,  for  any  good  cause,  notice  of  justifica- 
tion cannot  be  given  in  due  time,  or  the  justification 
cannot  be  consumated  at  the  time  specified,  an  order 
should  be  obtained  from  a  judge  extending  the  time  for 
justification,  and  new  notice  of  justification  should  be 
given  where  the  olficer  or  bail  did  not  attend  in  time  upon 
the  first  notice. 

AUou'ance  of  hail.  If  the  judge  find  the  bail  sufficient, 
he  should  annex  the  examination  to  the  undertaking,  or  a 
coj)y  thereof,  endorse  his  allowance  thereon,  and  cause  the 
same  to  be  filetl  with  the  clerk  where  the  judgment  is 
entered.  If  the  bail  fail  to  Justify,  others  who  can  justify 
may  be  substituted ;  such  sureties  may  file  a  new  nnder- 
taking,  but  they  must  justify  on  the  spot.  If  it  is  appa- 
rent that  the  appellant  is  i)roceeding  in  good  faith,  and 
his  bail  fail  to  justify,  the  court  will  doubtless  allow  him 
to  give  a  new  undertaking  and  furnish  new  sureties,  but 
in  that  case  it  is  the  practice  to  require  the  appellant  to 
give  the  usual  notice,  and  have  the  bail  justify  without 
the  respondents  having  excepted  to  them. 

If  the  hail  fail  to  justify  the  appeal  is  to  be  regarded  as 
if  no  undertaking  had  been  given. 

Additional  securiti/,  when  required.  Whenever  it  is  made 
satisfactorily  to  appear  to  the  court  that  since  the  execu- 
tion of  the  undertaking  the  sureties  have  become  insolvent, 
the  court  may,  by  rule  or  order,  recpiire  the  appellant  to 
execute,  file  and  serve  a  new  nndertaking,  if  the  appeal 
be  from  a  judgment  for  the  recovery  of  money  ;  and  in 
case  of  neglect  to  execute  such  undertaking  within  twenty 

*  Code,  341,  195,  196.  '  Ballard  v,  Ballard,  18  N.  Y.,  49L 


124  ADMINISTRATION   OF    CIVIL  JUSTICE. 

days  after  the  service  of  the  rule  or  order  requiring  such 
new  undertaking,  the  appeal  may,  on  motion  to  the  court, 
be  dismissed  with  costs.^  This  motion  should  be  made  in 
the  appellate  court. 

Deposit  in  lieu  of  undertaldng.  In  lieu  of  any  under- 
taking required,  the  party  required  to  give  security  may 
deposit  with  the  clerk  or  in  court  the  amount  for  which 
such  undertaking  is  to  be  given,  and  the  court  may  direct 
how  such  deposit  shall  be  invested.^ 

BesjwndeaV s  appearance.  The  appeal  having  been  regu- 
larly perfected,  the  resi)ondent's  attorney  should  serve 
upon  the  other  party  a  notice  of  retainer ;  but  this  is  not 
necessary  if  the  same  attorney  is  to  continue  who  was  the 
attorney  in  the  court  below.^ 

Filing  return.  When  the  appeal  is  perfected  by  the 
filing  of  the  undertaking,  and  the  service  of  the  notice  of 
appeal,  the  appellant  must,  within  twenty  days  thereafter, 
cause  the  proper  retnrn  to  be  made  and  filed  with  the  clerk 
of  the  court  of  appeals.^ 

Return  to  appeal.  The  return  is  made  by  the  clerk  with 
whom  the  judgment  or  order  appealed  from  is  entered, 
and  it  is  his  duty  forthwith,  at  the  expense  of  the  appel- 
lant, to  transmit  to  the  appellate  court,  by  delivering  the 
same  to  the  clerk  of  that  court,  a- certified  copy  of  the 
notice  of  appeal  and  of  the  judgment  roll,  and  if  the  ap- 
peal be  from  an  order,  or  any  part  thereof,  the  return  shall 
consist  of  certified  copies  of  the  notice  of  appeal,  the  order 
appealed  from,  and  the  papers  on  which  the  court  acted  in 
making  the  order."* 

When  the  appellant  fails  to  procure  the  proper  return  to 
he  filed  within  twenty  days  after  the  appeal  is  perfected, 
the  respondent  may  cause  such  return  to  be  made,  and,  if 
he  succeeds  on  the  appeal,  may  charge  the  expense  thereof 
as  a  disbursement  on  the  appeal,  in  case  the  judgment  is, 
in  whole  or  in  part,  alfirmed,^  or  in  case  the  appellant  fail 
to  procure  the  return  to  be  filed  within  twenty  days  after 
the  appeal  is  perfected,  the  respondent  may,  by  notice  in 
writing,  require  such  return  to  be  filed  within  twenty  days 
after  the  service  of  such  notice,  and  if  the  return  is  not 
tiled  within  the  time  specified  in  such  notice,  the  appel- 
lant will  be  deemed  to  have  waived  his  appeal.*^ 

»  Code,  §  335.  "  Code,  §  328 ;  Court  of  Appeals,  Rule  I. 

"  Court  of  Appeals,  Rule  i.  '  Code,  §  328. 

*  Court  of  Appeals,  Rule  2.  '  Court  of  Appeals,  Rule  2.  ^ 


APPEALS  TO  THE  COURT  OF  APPEALS.      123 

The  respondent  should  then  prepare  an  affidavit  show- 
ing when  the  appeal  was  perfected,  and  the  service  of  the 
notice  requiring-  that  the  return  should  be  filed,  and  pro- 
cure from  the  clerk  of  the  court  of  api^eals  a  certificate 
that  no  return  has  been  filed.  Upon  presenting  and  filing 
with  the  clerk  these  papers,  the  respondent  has  a  right  to 
enter  a  rule  with  the  clerk  to  the  effect  that  the  appeal  is 
dismissed  for  want  of  prosecution,  with  costs,  and  there- 
upon such  proceedings  may  be  had  as  if  no  appeal  had 
been  brought.^ 

Time  to  file  return,  Iww  extended.  If,  for  good  cause 
shown,  the  appellant  is  not  able  to  procure  the  return  to 
be  filed  within  the  proper  time,  ujjon  that  fact  being  made 
to  ai)pear  by  atfidavit,  the  court  of  appeals,  or  either  of 
the  judges  of  that  court,  may  grant  an  order  extending  the 
time  for  filing  the  return.- 

The  default  in  not  filing  the  return  in  time  will,  be  re- 
lieved against  on  proper  terms,  in  all  cases  where  it  appears 
that  the  appeal  is  brought  in  good  faith;  but  the  appeal 
will  not  be  reinstated  without  the  appellant  establishes  a 
clear  case  of  diligence  on  his  part,  and  shows  that  the 
unexcusable  default  of  the  clerk,  or  an  unavoidable  acci- 
dent, prevented  the  filing  of  the  return  or  the  extension  of 
the  time  of  filing  it.^ 

Order  for  further  return.  If  the  return  made  by  the 
clerk  is  defective,  either  party  may,  on  affidavit  specifying 
the  defect,  apply  to  one  of  the  judges  of  the  court  of  ap- 
peals for  an  order  that  the  clerk  make  a  fuither  return 
without  delay. 

Case  on  apical.  The  return  having  been  duly  filed,  the 
next  step  in  the  cause  is  for  the  appellant,  to  prepare  a 
case  which  consists  of  a  coi)y  of  the  return  of  the  clerk, 
co[)ies  of  the  opinions  delivered  or  reasons  given  for  the 
judgment  in  the  court  below,  both  at  special  and  general 
term,  and  if  the  case  is  voluminous,  an  index  to  the  plead- 
ings, exhibits,  deposition  and  other  principal  matters  cm- 
bodied  in  the  case.  If  the  opinions  or  reasons  of  the  court 
below  caimot  be  obtained,  an  affidavit  that  the  same 
cannot  be  obtained,  should  be  inserted  in  the  case.' 

Printinff  and  serving  case.  The  case  being  prepared  it 
nuist  be  printed,  and  within  forty  days  aft<3r  the  appeal 

'  Court  of  Appeals,  Rule  2.  407;   Spoore  y.  Tannain,    16  N.  Y. 

'  Coiu-t  of  Appeals,  Rule  18.  U.,  G20. 

*  Waiernan  v.  Whilnty,  1  How.  Pr.  R.,     *  Court  oC  Appeals,  Rulo  5. 


126  ADMINISTRATION   OF   CIVIL  JUSTICE. 

sliall  liavc  been  perfected,  the  appellant  must  serve  three 
printed  copies  of  the  case  on  the  respondent's  attorney. 
If  the  appellant  fails  to  do  this  in  proper  time,  the  re- 
spondent may  serve  a  notice  in  writing  upon  the  appellant's 
attorney,  requiring  the  service  of  such  printed  copies 
within  ten  days  after  the  service  of  such  notice.  If  the 
copies  are  not  served  within  the  time  specified  in  such 
notice,  the  appellant  will  be  deemed  to  have  waived  his 
appeal.  The  respondent  should  then  prepare  an  affidavit 
showing-  when  the.  appeal  was  perfecteil,  the  service  of  the 
notice  mentioned  after  the  lapse  of  the  forty  days,  and 
the  appellant's  default  in  not  serving  the  case  within  the 
time  Gpesified  in  the  notice.  This  affidavit  should  then 
be  filed  with  the  clerk  of  the  court  of  appeals,  who  will 
thereupon  enter  an  order  to  the  effect  that  the  appeal  is 
dismissed  for  want  of  prosecution,  and  the  court  below 
may  then  proceed  as  if  there  had  been  no  appeal.* 

ildu'f  from  dismissal.  If  the  proceedings  by  which  the 
order  dismissing  the  appeal  are  in  all  respects  regular,  and 
the  remittitur  has  been  made  and  filed  in  the  court  below, 
the  court  of  appeals  has  no  further  jurisdiction  over  the 
case,  and  the  only  remedy  the  appellant  has  is  to  bring  a 
new  appeal.^  IfAvill  be  irregular  to  bring  the  new  appeal 
Avithout  first  paying  the  costs  of  the  former  appeal,  and 
if  such  costs  are  not  paid,  the  second  appeal  will  be  dis- 
missed. 

If  the  order  dismissing  the  appeal  was  irregularly  en- 
tered or  entered  upon  a  false  affidavit,  the  court  of  appeals 
will  entertain  a  morion  to  set  aside  the  order  dismissing  the 
appeal,  and  the  remittitur,  which,  if  granted,  restores  the 
appeal  f  but  the  court  to  which  the  remittitur  is  sent  cannot 
inquire  as  to  its  propriety;  it  is  the  duty  of  that  court  to 
proceed  ujjon  it  if  it  is  regular  upon  its  face. 

Although  the  proceedings  of  the  respondent  in  dismiss- 
ing of  the  ai)peal  for  the  omission  to  file,  return  or  serve 
a  case  may  be  strictly  regular,  the  court  of  appeals  may, 
before  the  remittitur  is  tiled,  relieve  the  party  on  motion 
from  the  default,  but  this  will  only  be  allowed  where  a 
clear  case  of  diligence  is  shown.'' 

When  return  or  case  is  imperfect.  Where  the  return  filed 
or  the  case  served  is  imperfect,  the  remedy  is  by  motion  to 


'  Court  of  Appeals.  Rule  7.  -  Newton  v.  Harris,  S  Barb.,  306. 

=  Dressn'-  v.  Brooks,4.  How.  Pr.  R.,  207.     "  Spoore  v.  Tannain,  16  N.  Y.  R.,  620. 


APPEALS  TO  THE  COURT  OF  APPEALS.       127 

tbe  court  upon  notice.  The  right  to  dismiss  the  appeal  by 
common  rule  applies  only  to  those  cases  where  there  is  an 
eutire  failure  to  tile  a  return  or  serve  copies  of  the  case.^ 

Where  no  case  is  made  or  served  on  appeal,  the  resj)on- 
dent  may,  instead  of  taking  proceedings  to  dismiss  the 
appeal  by  common  rule,  wait  until  the  cause  is  regularly 
called  on  the  calendar,  and  then  take  judgment  of  aftirm- 
ance  by  default.  He  is  not  bound  to  move  to  dismiss  the 
a])peal.  This  is  much  the  better  practice  to  adopt  in  those 
cases  where  the  undertaking  was  given  before  the  late 
amendment  of  the  Code,  requiring  surety  to  be  given  as 
well  against  a  dismissal  as  an  affirmance. 

Notice  of  argument.  The  notice  of  argument  nuisfr  spe- 
cify the  judicial  district  in  which  the  appeal  arose;  it  must 
be  for  the  first  day  of  the  term,  and  must  be  served,  at 
least  eight  days  before  the  term,  upon  the  attorney  of  the 
adverse  party  and  the  clerk  of  the  court.  The  notice 
served  on  the  clerk  must  be  accompanied  by  due  admis- 
sion or  proof  of  service  of  notice  of  argument  upon  the 
adverse  party,  and  unless  such  proof  is  furnished,  the  clerk 
will  not  put  the  case  on  the  calendar.^  If  the  cause  is 
duly  noticed  for  the  January  term  in  any  year,  it  will  be 
considered  as  noticed  for  all  subsequent  terms  in  the  year. 
Any  party  claiming  a  preference,  must  state  in  his  notice 
of  argument  to  the  op[)osite  part}',  and  to  the  clerk,  the 
ground  of  such  preference,  so  as  to  show  to  what  class  of 
preferred  cases  the  cause  belongs. 

Calendar.  It  is  the  duty  of  the  clerk  to  make  up  a  cal- 
endar for  the  Jaimary  term  of  each  year,  which  stands  as 
the  calendar  for  the  entire  year.  Preferred  causes  are 
placed  on  the  calendar  in  the  following  order:  1.  Oriminal 
actions;  2.  Cases  of  probate  in  which  the  appeal  prevents 
the  issuing  of  letters  testamentary  or  of  general  adminis- 
tration; 3.  Appeals  in  which  the  sole  plaintiffs  or  defend- 
ants are  executors  or  administrators;  4.  All  other  preferred 
causes.  Then  follows  the  other  causes,  arranging  tliem  in 
the  order  in  which  returns  are  filed,  specifying  the  Judicial 
district  in  which  the  causes  originated  respectively. 

After  the  January  term  in  each  year,  no  causes  except 
such  as  are  by  law  entitled  to  a  preference  will  be  per- 


'  Botver.s  v.  Tullmadge,  20  N.  Y.  R.,  516.     "  Court  of  Appeals,  Rules  8,  24,  27. 

*  By  n  lute  rule  it  i?  required  that  the  notice  of  argument  shall  be  served  on  the  clerk 
before  the  Qfteciith  of  December. 


128  ADMINISTRATION   OF   CIVIL  JUSTICE. 

luitted  to  be  placed  on  the  calendar  without  the  direction 
of  the  court. 

There  is  no  advantage  in  noticing  any  other  than  a 
preferred  cause  for  any  otlier  than  January  terms.  A 
calendar  of  preferred  causes  is  made  up  for  each  term, 
and  when  that  is  disposed  of  at  the  second  and  each  subse- 
quent term  in  the  year,  the  call  of  the  calendar  will  com- 
mence at  the  point  where  it  terminated  at  the  previous  term. 

Preparation  for  argument.  Each  party  should  prepare 
a  brief  statement  of  tlie  leading-  facts  of  the  case  which 
he  deems  established,  with  a  reference  to  the  folios  where 
the  evidence  of  such  facts  may  be  found,  together  with  the 
points  on  which  he  intends  to  rely,  with  a  reference  to 
the  authority  which  he  intends  to  cite.  These  points  must 
be  printed  in  the  same  manner  as  the  case. 

Calendar  practice.  Any  cause,  except  the  first  ten  upon 
the  calendar,  on  consent  of  the  parties  who  placed  the  same 
thereon,  may,  at  any  time,  during  the  first  week  of  the  term, 
be  struck  therefrom,  by  the  clerk,  of  course,  and  without 
prejudice  to  its  being  placed  on  the  calendar  for  the  next 
year.  Ten  causes  only  will  be  called  on  any  day,  but  after 
such  call,  cases  ready  on  both  sides  will  be  heard  in  their 
order.  Causes  upon  the  calendar  may  be  exchanged  one 
for  another,  of  course,  on  filing  with  the  clerk  in  court 
a  note  of  the  ])roposed  change,  with  the  numbers  of  the 
causes,  signed  b}'  the  respective  attorneys  or  counsel.  Upon 
all  subsequent  calendars,  each  of  said  causes  will  take  the 
place  due  to  the  date  of  the  filing  of  the  return  in  the  other. 
A  cause  cannot  be  reserved  or  set  down  for  a  i)articular 
day  except  in  extraordinar}'  cases.  When  a  cause  is  called, 
it  is  the  duty  of  the  appellant  to  deliver  to  the  clerk  in 
court  fourteen  copies  of  the  printed  case  and  his  points,  and 
the  respondent  a  like  number  of  his  printed  points.  The 
clerk  will  dispose  of  them  as  follows:  He  will  deliver  a 
co})y  to  each  of  the  judges,  one  copy  to  the  state  reporter, 
one  copy  shall  be  deposited  in  the  state  library,  one  copy 
Khali  be  deposited  in  each  branch  of  the  library  of  the  court 
of  ai)peals,  one  copy  shall  be  deposited  in  the  New  York 
law  institute,  and  one  copy  of  each  shall  be  kept  by  the 
clerk  with  the  records  of  the  court.  If  the  cause  is  called 
and  the  respondent  does  not  appear,  the  appellant  shall 
furnish  the  court  with  the  usual  number  of  printed  copies 
of  the  case  and  points,  and  shall  furnish  to  the  clerk  another 
printed  copy  of  the  points,  to  be  by  him  delivered  to  the 


APPEALS  TO  THE  COURT  OF  APPEALS.      1^9 

other  party  when  called  for.  If  the  respondent  appears 
and  the  appellant  does  not  appear,  he  shall  hand  to  the 
court  the  copies  of  the  case  served  on  him  and  fonrteen 
printed  copies  of  the  points,  and  shall  also  hand  to  the  clerk 
a  copy  of  his  points  for  the  opposite  party.  The  party 
appearing  alone,  may,  at  his  option,  snbmit  the  case  on  his 
brief  or  argue  it.  At  any  time  within  twenty  days  after  the 
cause  has  been  so  submitted  or  argued,  the  opposite  party 
may  furnish  to  each  member  of  the  court,  and  serve  upon 
the  opposite  party  a  printed  ans-wer  to  such  brief,  which 
may  be  replied  to  within  fifteen  days  after  such  service. 

If  neither  party  appears  when  the  case  is  called,  it  will 
be  passed,  and  it  will  be  placed  on  all  subsequent  calen- 
dars as  if  the  return  had  been  filed  on  the  day  when  it 
was  so  passed ;  and  if  it  is  a  preferred  cause,  it  thereafter 
looses  its  preference,  except  that  any  cause  that  is  passed 
will  resume  its  original  ijlace  upon  the  calendar  for  the 
ensuing  year. 

Suhnitting causes.  Causes  which  have  not  been  exchanged 
may  be  submitted  at  any  time  on  printed  arguments. 
Exchanged  causes  cannot  be  submitted  until  they  are 
reached  od  the  calendar. 

Argument.  In  the  argument  of  causes  only  one  counsel 
on  each  side  will  be  heard  unless  the  court  shall  otherwise 
direct.  The  appellant's  counsel  opens  the  argument,  to 
which  the  respoudeut's  counsel  replies  when  the  appel- 
lant's counsel  closes,  by  replying  to  any  new  points  taken 
by  respondent.  Ko  extended  discussion  is  allowed  upon 
any  mere  question  of  fact,  and  no  more  than  two  hours 
shall  be  occupied  by  each  counsel  except  by  the  express 
permission  of  the  court. 

Errors  in  case.  If  the  case  does  not  present  questions 
that  can  be  properly  examined  in  the  court  of  appeals,  that 
court  will  dismiss  the  appeal  whether  a  motion  has  been 
made  for  that  purpose  or  not ;  but  if  it  should  apjiear  that 
the  defect  in  the  case  is  a  clerical  or  accidental  omission, 
and  that  the  party  has  acted  in  good  faith,  the  court  will 
order  the  case  to  stand  over  and  order  the  omission  to  be 
supplied. 

lie-argument.  If  the  unsuccessful  party  thinks  it  clear 
that  the  appellate  court  has,  through  error  or  misapi)rehen- 
Bion,  erroneously  decided  his  case,  and  that  he  will  be  able 
to  satisfy  the  court  of  this,  he  may  prepare  papers  on 
which  to  move  for  a  re-argument,  and  on  these  motion 

n.— 17 


/ 


130  ADMINISTRATION   OF   CIVIL  JUSTICE. 

papers  procure  from  tbe  court  or  a  judge  thereof,  an  order 
staying  tbe  sending  down  of  the  remittitur  until  he  can 
be  heard  on  his  motion.  If  the  court  have  reason  to 
believe  that  there  has  been  any  misapprehension  of  the 
case  on  the  part  of  the  court,  that  would  be  likely  to  vary 
th(5  result,  it  may  order  a  re-argument,  in  which  case  it 
would  again  go  upon  the  calendar  as  we  have  already 
.shown. 

2Vte  decision  and  remittitur.  The  decision  haviug  been 
made  by  the  court,  and  tiled  by  its  clerk,  it  is  his  duty  to 
I)repare  the  remittitur,  which  shall  contain  a  statement 
of  the  judgment  of  the  court  of  appeals,  aud  the  return 
made  by  the  clerk  of  the  court  below,  and  shall  be  sealed 
with  the  seal,  and  signed  by  the  clerk  of  the  court.  The 
successful  party  should  see  that  this  remittitur  is  properly 
made  and  tiled- with  the  clerk  where  the  judgment  appealed 
from  is  entered. 

Entry  of  judgment.  The  remittitur  having  been  pro- 
perly filed,  the  successful  party  can  proceed  to  tax  his 
costs  before  the  clerk  of  the  county  where  the  judgment 
appealed  from  was  entered,  and  he  may  there  enter  in  the 
oltice  of  the  same  clerk  a  judgment  to  the  effect  directed 
by  the  court  of  a])peals.  The  court  of  appeals  may,  in  its 
discretion,  award  <hunages  for  the  delay  by  means  of  the 
appeal,  not  exceeding  ten  per  cent  u[)on  the  amount  of 
the  judgment,^  and  when  this  allowance  is  made,  it  should 
be  included  with  the  costs  in  the  judgment  entered  in  the 
court  below  on  the  remittitur. 

It  has  frequently  been  asserted  by  judges  that  upon  filing 
the  remittitur  in  the  court  below,  a  motion,  on  notice, 
should  be  made  in  that  court  for  an  order  that  the  judg- 
ment of  the  appellate  court  be  made  tbe  judgment  of  the 
court  below ;  but  this  is  not  thought  to  be  necessary.  It 
woidd  seem  to  be  a  matter  of  course,  and  there  can  be  no 
good  reason  why  tbe  judgment  should  not  be  entered  ex 
imrte  and  of  course.  Should  a  judgment  be  entered,  th.it 
is  not  warranted  or  authorized  by  tbe  remittitur,  it  will 
be  set  aside  on  motion.  A  copy  of  tbe  judgment  entered, 
attached  to  the  remittitur  on  file  will  constitute  the  judg- 
ment roll. 

If  the  judgment  involves  anj'  special  provisions,  it  is 
usual  upon  the  decision  of  the  case  for  the  court  to  desig- 


'  Code,  §  307. 


APPEALS  TO  THE  COURT  OP  APPEALS.      131 

nate  one  of  its  judges,  before  whom  the  details  of  the  deter- 
mination shall  be  settled.  Either  party  may,  ou  notice, 
bring-  the  case  before  such  judge  for  settlement,  and  the  form 
of  the  decisiou  as  settled,  shoidd  be  tiled  with  the  clerk  of 
the  court  of  appeals  before  the  remittitur  is  made  up. 

Appeals  from  orders.  Unlike  the  practice  iu  the  supremo 
court,  the  sauie  practice  obtains  iu  this  court  on  appeals 
from  orders,  as  upon  appeals  from  judgmeuts.  Notice  of 
appeal  is  given  iu  the  same  manner,  the  same  security 
is  required  to  uuike  tlie  appeal  etFectual.  The  cause  is 
noticed,  put  on  the  calendar,  and  heard  in  the  same  man- 
ner as  an  appeal  from  judgmeuts  and  the  same  costs  are 
taxable. 

Motions.  In  this  court  motions  are  prepared  and  brought 
on  the  same  as  iu  other  courts.  The  affidavits  and  other 
l)apers  must  be  entitled  iu  the  court  of  appeals.  Motions 
may  be  noticed  for,  and  brought  to  hearing,  on  the  tirst 
day  of  the  term,  and  on  each  succeeding  Tuesday  and 
Friday  at  the  opening  of  the  court,  and  before  the  calen- 
dar is  taken  up.  When  notice  of  a  motion  has  been  given, 
if  no  one  appear  to  oppose  it,  and  it  does  not  interfere 
with  the  power  of  the  court  in  controlling  their  caleiular, 
it  will  be  granted  as  of  course. 

If  a  motion  be  not  made  on  the  day  for  which  it  has 
been  noticed,  the  opposing  party  will  be  entitled,  ou  ap- 
plying to  the  court  at  the  close  of  the  motions  for  that 
day,  to  a  rule  denying  the  motion,  with  costs. 

Action  upon  the  umhrtaJdug.  No  action  can  be  com- 
menced upon  any  of  the  undertakings  before  mentioned, 
until  ten  days  after  the  service  of  notice  ou  the  adverse 
party,  of  the  entry  of  the  order  or  judgment  afldrming  the 
judgment  appealed  from.^ 

Discontinuing  appeal.  The  appellant  may,  at  any  time, 
enter  an  order  with  the  appellate  court,  discontinning 
his  appeal,  if  he  desires  to,  upon  paying  or  tendering  to 
the  a<lverse  i)arty  his  costs.  If  he  cannot  adjust  the  costs 
he  should  call  upon  the  other  party  to  tax  them,  and  if 
that  is  declined,  a  motion  should  be  made  for  leave  to  dis- 
continue setting  out  on  the  motion  i)apers,  the  otfer  to 
pay  the  costs,  and  the  refusal  or  neglect  of  the  otlun-  party 
to  tax  them,  and  the  court  will  thereupon  order  the  appeal 
discontinued  upon  such  terms  as  it  deems  just. 

'  Code,  §  340. 


132  ADMINISTRATION   OP   CIVIL  JUSTICE. 


CHAPTER  VII. 

APPEALS  TO  THE  GENERAL  TERM  OF  THE  SUPREME  COURT 
FROM  AN  INFERIOR  COURT. 

An  appeal  may  be  taken  to  the  supreme  court  from  a 
judgment  rendered  by  a  county  court,  or  by  the  mayor's 
courts  or  recorder's  courts  of  cities,  and  also  from  any 
order  affecting  a  substantial  rigbt  made  by  a  county  court 
or  a  county  judge  in  any  action  or  proceeding.^  An 
appeal  may  also  in  the  same  manner  be  taken  from  a 
judgment  or  final  determination  of  tlie  Brooklyn  city 
court,  and  from  any  intermediate  order  of  that  court 
involving  the  merits  and  necessarily  affecting  the  judg- 
ment.^ The  practice  as  prescribed  by  the  Code  does  not 
apply  to  appeals  from  judgments  and  decrees  of  surro- 
gates ;  such  decrees  will,  therefore,  be  separately  con- 
sidered. In  j)roceedings  respecting  the  admeasurement 
of  dower,  which  may  be  taken  either  in  the  county  or  sur- 
rogate court,  the  appeal  must  be  taken  as  directed  in  this 
chapter,  if  the  proceeding  is  in  the  county  court ;  if  it  is 
in  the  surrogate  court,  then  the  appeal  must  be  taken  as 
we  shall  presently  show. 

Time  within  wJiick  appeal  mast  he  taken.  If  from  a  judg- 
ment, the  appeal  must  be  taken  within  two  years  after  the 
judgment  shall  be  perfected,  by  filing  the  judgment  roll.^ 
There  does  not  seem  to  be  any  express  provision  as  to  the 
time  within  which  an  ajjpeal  from  an  order  should  be 
brought,  but  we  are  of  the  opinion  that  the  section  of  the 
Code  limiting  the  time  for  appealing  from  judgments^  will 
be  construed  to  apply  as  well  to  orders,  and  that  appeals 
from  orders  under  tliis  chapter  must  be  brought  within 
two  years  after  the  entry  thereof. 

Where  the  appeal  is  from  an  order  or  decision  of  the 
county  court,  confirming  or  vacating  any  admeasurement 
of  dower,  or  the  judgment,  order  or  other  determination 
of  that  court  upon  any  proceeding  instituted  therein  in 
relation  to  the  persons  or  estates  of  habitual  drunkards,  it 


*  Code,  g  344.  '  Code,  §  33L 

»  Laws  of  1850,  ch.  102,  p.  148. 


APPEALS  TO   THE   SUPEEiyiE   COUET.  133 

would  be  safer  to  take  the  appeal  in  the  former  case  witliiu 
thirty  (lays,  and  ia  the  latter  within  three  months  after 
the  making  of  such  order,  judgment  or  other  determina- 
tion, inasmuch  as  by  the  Revised  Statutes  such  appeals 
are  required  to  be  taken  within  that  time.^ 

Notice  of  apiyeal.  The  first  step,  in  bringing  the  appeal, 
is  to  make  and  serve  the  notice  of  appeal.  The  same 
practice  applies  in  making  and  serving  the  notice  of  appeal 
as  in  the  court  of  appeals. 

Security.  To  render  the  appeal  e^ectual  for  any  purpose 
whatever,  the  same  security  for  fe*F^ hundred  a^  Mfcr  dol-  '  i^* 
lars  must  be  given,  as  has  been  shown  to  be  necessary  in  the 
court  of  appeals,  and  the  like  security  as  is  there  required 
must  be  given  to  effect  a  stay  of  proceedings  upon  the 
judgment  appealed  from,^  and  the  same  motion  must  be 
made  as  has  been  shown  to  be  necessary  in  that  court, 
where  the  appeal  is  from  an  order,  and  a  stay  is  desired. 

When  t/ie  appeal  is  from  a  judgment. 

Return.  Upon  the  appeal  being  perfected,  it  is  the  duty 
of  the  clerk  with  whom  the  notice  of  appeal  is  filed,  at 
the  expense  of  the  appellant,  forthwith  to  make  and  file 
in  his  office  a  certified  copy  of  the  notice  of  appeal  and 
of  the  judgment  roll.^  If  the  appellant  does  not,  within 
twenty  days  after  the  appeal  is  perfected,  procure  such 
return  to  be  made,  the  respondent  may  cause  it  to  be  done, 
and  in  case  the  judgment  is  affirmed,  he  may  cause  the 
expenses  thereof  to  be  taxed  as  a  disbursement  ;*  but 
the  respondent  is  not  bound  to  do  this.  If  the  api)ellant 
for  an  unreasonable  time,  without  sntficient  excuse,  omits 
to  i)rocure  the  filing  of  the  return,  the  court  would  doubt- 
less, on  motion,  dismiss  the  ai)peal.^ 

Notice  of  argument.  The  return  having  been  filed,  the 
cause  is  in  readiness  to  notice  for  argument.  It  may  be 
noticed  for  a  general  term,  either  in  the  district  embracing 
the  county  where  the  judgment  appealed  from  Avas  entered, 
or  in  a  county  adjoining  that  county,  except  that  where 
the  judgment  was  entered  in  the  city  and  county  of  New 
York,  the  appeal  must  be  heard  in  the  first  judicial  dis- 
trict.® Either  party  may  notice  the  cause  for  argument, 
and  the  notice  must  be  at  least  eight  days. 

•  3  R.  S.,  5th  ed.,  907  (Gil).  '  Laws  18G2.  p.  GG2. 

*  Jones  V.  Decker,  14  Abb.,  391,  '  Hojan  v.  BrojAij,  2  Code  Rep.,  77. 
»  Code,  §  328.  •  Code,  §  346. 


s 

134  ADMINISTRATION   OF   CIVIL  JUSTICE. 

Note  of  issue.  A  note  of  issue,  showing  the  title  of  the 
canse,  the  names  of  the  attorneys  of  the  respective  parties, 
and  the  date  of  the  service  of  the  notice  of  appeal,  shall, 
at  least  eight  days  before  the  time  of  the  commencement 
of  the  conrt  for  which  the  cause  is  noticed,  be  tiled  with  the 
clerk  of  the  county  where  the  general  term  is  appointed  to 
be  held.* 

Case  on  appeal.  It  is  the  duty  of  the  appellant  to  prepare 
a  case  on  appeal,  which  must  show  the  time  of  the  com- 
mencement and  of  the  service  of  the  respective  pleadings, 
the  names  of  the  original  jiarties  in  full,  the  change  of 
parties,  if  any  has  taken  place  pending  the  suit,  to  wliic'A 
shall  be  added  a  copy  of  the  return  of  the  clerk  and  the 
opinion  of  the  court  below,  or  an  affidavit  that  no  opinion 
in  writing  was  given,  or,  if  given,  that  a  copy  could  not 
be  prociu-ed.^  This  case  must  be  printed,  and  at  least 
eight  days  before  the  commencement  of  the  term  the 
appellant  must  serve  upon  the  respondent's  attorney  three 
jn-inted  copies  of  the  case.  If  he  fail  to  do  this,  the  latter 
shall  be  entitled  to  move  on  atiidavit  and  notice  of  motion 
for  the  earliest  practicable  day  in  the  term  for  hearing  non- 
enumerated  motions,  that  the  cause  be  stricken  from  the 
calendar  (whichever  party  may  have  noticed  it  for  argu- 
ment), and  that  judgment  be  rendered  in  his  favor.  Motion 
days  are  the  first  day,  Thursday  of  the  first  week,  and  Fri- 
day of  the  second  week  of  the  term  ;  so  that,  as  the  notice 
of  inotion  must  be  given  for  eight  days,  the  motion  will 
have  to  be  for  the  second  or  a  later  motion  day  in  term, 
and  shonld  the  cause  be  reached  on  the  calendar  before  the 
day  for  which  the  motion  is  noticed,  it  is  the  practice  of 
the  court,  upon  the  suggestion  that  snch  a  motion  is  pend- 
ing, to  reserve  the  case  until  the  motion  can  be  heard.  If 
the  printed  case  as  served  is  materially  defective,  the  appel- 
late court  will,  on  motion,  order  the  defects  to  be  corrected 
by  the  appellant,  and  with  costs  of  motion,  if  it  shall 
appear  that  the  appellant's  attorney,  upon  request,  neg- 
lected or  refused  to  make  proper  corrections. 

Points.  Before  the  meeting  of  the  court,  each  party 
should  prepare  and  cause  to  be  printed  a  statement  of  the 
leading  facts  which  he  deems  established,  with  a  reference 
to  the  folios  where  the  evidence  of  such  facts  may  be 
found,  together  with  the  points  on  which  he  intends  to 

*  Supreme  Court,  rule  41.  "  Supreme  Court,  rule  43. 


APPEALS  TO  THE  SUPREME  COURT.        135 

rely,  'with  a  reference  to  the  authorities  which  he  intends 
to  cite. 

Argument.  At  the  commencement  of  the  argument,  tlie 
appellant  must  furnish  each  of  the  judges  a  printed  copy 
of  the  case  and  his  points,  and  must  also  deliver  to  his 
adversary  a  copy  of  his  points.  The  respondent  must  fur- 
nish the  judges  and  appellant's  counsel  each  a  copy  of  his 
points.  Tbe  appellant  opens  and  closes  the  argument ;  the 
court  will  not  liear  an  extended  discussion  on  a  mere  ques- 
tion of  fact ;  not  more  than  one  counsel  will  be  heard  on 
each  side,  and  then  not  more  than  one  hour  each,  except 
when  the  court  shall  otherwise  order. 

Decision.  The  appellate  court  is  vested  with  no  appellate 
authority,  excei)t  to  review  and  correct  the  decisions  of  the 
court  below,  actually  made  after  a  hearing  of  both  parties. 
It  can,  therefore,  aftord  no  relief  where  the  judgment  ap- 
pealed from  was  rendered  by  defanlt.^  The  court  may 
reverse  the  judgment  as  to  one  j)arty  and  may  afiirm  it  as  to 
another,  but  it  will  not  reverse  the  judgment  as  to  a  party 
that  has  not  appealed.^  So  the  court  may  aifirm  the  judg- 
ment as  to  one  cause  of  action  and  reverse  it  as  to  another, 
or  where  the  same  cause  of  action  consists  of  several 
distinct  items,  the  judgment  ma}'  be  reversed  as  to  some 
items  and  affirmed  as  to  others. 

What  errors  reviewed.  The  proper  mode  of  correcting 
au  error  of  the  jury  where  there  has  been  a  trial  by  jury, 
in  the  court  from  which  an  appeal  is  brought,  is  by  a 
motion  to  set  aside  a  verdict  and  for  a  new  trial  in  that 
court,  which,  as  Ave  have  shown,  may  be  founded  upon 
the  judge's  minutes  or  a  case,^  or  where  an  irregularity  is 
alleged  upon  affidavits,'  only  the  errors  of  the  court,  and 
not  those  of  the  jury,  can  be.  corrected  on  appeal.''  On 
the  other  hand,  if  the  trial  in  either  of  these  courts  has 
been  by  a  judge  or  referee,  an  appeal  lies  directly  to  the 
general  term  where  any  errors  in  law  or  in  the  finding 
of  facts  nijiy  be  corrected.  But  before  the  appeal  is  taken, 
if  there  is  any  irregularity  in  the  linding  of  the  judge  or 
report  of  the  referee,  that  should  be  corrected  by  motion 
in  the  inferior  court.-^  The  county  court  and  the  13rooklyu 
city  court  are  empowered  by  statute  to  grant  new  trials, 


'  Dorr  V.  Birge,  8  Barb.,  351.  *  TInuher  v.  Toiunsend,  22  N.  Y.,  517. 

»  Gerard  V.  Sktgrj,  10  How.  Pr.  R.,  3G9.     ^  JIuke  v.  Shaman,   I'i   J  low.   P.    11., 
"Ante,  vol,  1.  411. 


136  ADMINISTRATION   OF   CIVIL   JUSTICE. 

or  affirm,  modify  or  reverse  judgments  in  actions  tried  in 
such  courts  upon  exceptions  or  case  made  subject  to  an 
appeal  to  the  supreme  court,  and  it  bas  been  claimed,  and 
perhaps  decided  at  special  term,  that  the  means  of  review- 
ing decisions  in  the  inferior  court  must  be  exhausted  before 
an  appeal  to  the  supreme  court ;  but  we  do  not  think  this 
is  correct.  It  is  our  opinion  that  a  party  may,  where  he 
alleges  that  an  error  of  law  has  been  committed,  pursue 
either  course,  that  is,  he  may  apxjly  to  that  court  for  a  new 
trial,  or  he  may  appeal  at  once  to  the  supreme  court.  If 
the  question  is  one  which  the  judge  on  the  trial  deliberately 
decided,  it  would  seem  to  be  an  idle  waste  of  time  to  go 
again  before  that  judge  on  a  motion  for  a  new  trial.  The 
right  to  move  for  a  rehearing  where  the  referee  has  made 
his  report  was  given  by  the  Code  of  1849,  but  that  has 
been  repealed. 

Judgment.  The  appeal  having  been  decided,  j)rocure  a 
certified  copy  of  the  decision  from  the  clerk  of  the  general 
term  and  tile  it  with  the  clerk  of  the  court  where  the 
judgment  appealed  from  is  entered,  and  then  proceed  to 
enter  your  judgment  in  the  supreme  court.  Where  the 
judgment  of  the  inferior  court  is  affirmed,  the  amount 
recovered  in  that  court  should  be  included  in  the  judgment 
entered  in  the  supreme  court,  for  the  other  judgment  has 
been  superseded  by  the  appeal.  In  theory,  at  least,  that 
judgment  and  the  power  of  enforcing  it  was,  by  the  api)eal, 
transferred  to  the  appellate  court. 

Ajij^eals  from  orders. 

Aiypeal  from  order  of  county  court  or  county  judge.  The 
order  to  be  appealable  must  be  one  aftecting  a  substantial 
right  in  an  action  or  proceeding  made  bj'  a  county  court 
or  a  county  judge.  The  statute  giving  the  appeal  we  are 
now  considering  does  not  extend  to  mayor's  courts  or  re- 
corder's courts,^  nor  to  orders  made  by  a  conn tj^  judge,  spe- 
cial county  judge  or  recorder.  In  actions  in  the  supreme 
court,  such  orders  are  appealed  from  in  the  same  manner 
and  within  the  same  time  as  if  the  order  had  been  made 
by  a  justice  of  the  supreme  court.  The  order  is  not  ap- 
pealable unless  there  existed  a  right  which  has  been 
injuriously  affected  thereby;  such  right  must  be  a  fixed 
determined  one.    If  the  order  relates  merely  to  the  prac- 

'  Code,  §  344. 


APPEALS  TO  THE  SUPREME  COTJET.  137 

tice  which  is  governed  by  the  discretion  of  the  court,  it  is 
not  appealable.^ 

Order  must  he  entered.  Where  the  order  is  in  an  action, 
or  in  such  a  proceeding  that  it  does  not  become  operative 
until  entered,  the  appeal  should  not  be  brought  until  it  is 
so  entered. 

Notice  of  aiipeal  and  undertaking  and  costs.  The  same 
notice  of  appeal,  and  the  same  undertaking  for  two  hun- 
dred and  fifty  dollars,  must  in  all  cases  be  given  as  if 
the  appeal  was  from  a  judgment,  and  except  in  appeals 
from  orders  in  special  proceedings,  the  prevailing  party 
is  entitled  to  the  same  costs  that  he  would  be  entitled  to 
had  the  appeal  been  from  a  judgment.  Appeals  from 
orders  under  section  349  of  the  Code,  but  not  those  under 
section  344,  are  excluded  from  the  operation  of  the  section 
giving  costs  on  appeal  to  the  general  term ;  if  the  appeal 
is  from  a  decision  in  a  special  proceeding,  the  appeal  is  for 
all  purposes  of  costs,  to  be  deemed  an  action  at  issue  on  a 
question  at  law  from  the  time  the  same  shall  be  brought 
into  the  supreme  court,  and  costs  therein  will  be  awarded 
and  collected  in  such  manner  as  the  court  shall  direct 
according  to  the  nature  of  the  case.^ 

When  county  judge  acts  as  justice  of  the  sitpreme  court  at 
chamhers.  Where  orders  are  made  by  a  county  judge  in 
proceedings  in  the  supreme  court,  his  orders  are  to  be 
appealed  from  in  the  same  manner  as  if  they  had  been 
made  bj^  a  justice  of  the  supreme  court,  and  not  as  pre- 
scribed in  this  chapter. 

Preparation  for  argument.  Unlike  appeals  under  section 
three  hundred  and  forty-nine  of  the  Code,  the  aj^peals  from 
orders  of  which  we  are  now  treating,  are  enumerated 
motions  f  and  the  cause  must  be  noticed  and  placed  on 
the  calendar,  and  the  papers  in  the  case  must  be  printed 
in  the  same  manner  as  if  the  appeal  was  from  a  judgment.* 

Decision.  The  appellate  court  may  affirm,  reverse  or 
modify  the  order  appealed  fiom  f  and  if  the  order  is 
reversed  in  part  and  affirmed  in  part,  the  costs  of  the 
appeal  are  in  the  discretion  of  the  court.^ 

Judgment.  It  is,  i)erhaps,  not  certain  how  far  the  courts 
may  be  disposed  to  assimilate  the  practice  upon  appeals 
we  are  now  treating  of  to  appeals  under  section  three  hun- 

'  Tallman  v.  Ilinman,  10  How.  P.  R.,  90.     *  Supreme  Court,  Rules  41,  43,  46. 
"Code,  ^  318.  'Code,  S  330. 

'  Supreme  Court,  Rule  40.  •  Code,  §  306. 

II.— 18 


138 


ADMINISTRATION   OF   CIVIL  JUSTICE. 


(Ired  and  forty-nine  of  the  Code ;  but  if  the  statute  and 
rules  of  practice  as  they  now  stand  are  followed,  it  will  be 
regular  and  proper  to  enter  in  the  office  of  the  county 
clerk  where  the  order  appealed  from  is  entered,  a  judg- 
ment upon  the  decision  of  the  appeal,  the  same  as  If  the 
appeal  had  been  from  a  judgment.^ 


CHAPTER  VIII. 

APPEALS  FEOM  SURROGATE'S  COURT. 

Tlie  cases  in  which  appeals  may  be  brought  from  orders, 
decrees  and  sentences  of  surrogates'  courts,  are  found  in 
various  provisions  of  the  statutes,  and  the  practice  in  such 
cases  is  regulated  by  such  statutes  and  the  rules  of  the 
supreme  court. 

These  appeals,  except  as  to  costs,  are  expressly  excluded 
from  the  operation  of  the  second  part  of  the  Code.^ 

In  all  cases  these  appeals  are  taken  to  the  supreme  court, 
and  are  heard  in  that  court  at  general  term.  This  court  was 
substituted  as  the  appellate  tribunal  in  lieu  of  the  chan- 
cellor or  circuit  judge,  by  the  judiciary  act  of  1847.^ 

1)1  what  cases  an  appeal  will  lie  and  wheii  it  must  he 
brought.  Any  devisee  or  legatee  named  in  a  will,  or  any 
heir  or  next  of  kin  to  a  testator,  may  appeal  within  three 
months  after  the  decision  of  the  surrogate,  admitting  such 
will  to  i)robate,  or  refusing  the  same^  An  appeal  may  be 
taken  from  a  decree  of  a  surrogate  for  the  final  settlement 
of  the  account  of  any  executor,  administrator  or  guardian, 
within  three  months  after  such  decree  shall  have  been 
recorded.^  An  ai)eal  from  the  order  of  a  surrogate  for  the 
appointment  or  removal  of  a  guardian,  or  upon  a  refusal 
to  make  such  removal,  must  be  made  within  six  months 
after  such  order  shall  have  been  entered.*^  Appeals  from 
the  orders  of  surrogates  conlirmhig  or  vacating  any  ad- 


'  Code.  §§  330,  347. 

'Code  §471. 

*  Laws  of  1847,  ch.  280, 


17. 


*  3  R.  S.,  5th  ed.,  150  (66).  905  (608). 

"  3  R.  S.,  5th  ed.,   906  (610),   244  (152). 

•  3  R.  S.,  5th  ed.,  906  (610). 


APPEALS  FROM  SURROGATE'S  COURT.  139 

measurement  of  dower,  shall  be  made  within  thirty  days 
after  the  making  of  the  order  or  decision  appealed  from.' 

In  case  of  any  other  order,  decree  or  sentence  than  those 
hereinbefore  si)ecified,  any  party  who  has  a  right  thereby 
affected  may  ai)peal  to  the  snpreme  court  within  thirty 
days  after  snch  order,  decree  or  sentence  shall  have  been 
made.'-  And  so,  within  this  time  an  appeal  must  be  made 
from  II  decision  of  a  surrogate  contirining  the  probate  of 
a  will  upon  allegations  being  tiled  against  its  validity.^ 
Where  an  account  is  rendered  that  is  not  tinal  as  to  all 
parties  interested,  the  appeal  must  be  in  thirty  days.^ 
And  so,  a  decree  for  the  payment  of  debts  made  without 
citing  all  the  parties  interested.^  Yet,  if  the  decree  erro- 
neously purport  to  be  tinal,  the  appeal  may  be  brought 
within  three  months." 

When  an  cqypeal  docs  not  lie.  An  appeal  oidy  lies  where 
some  decision  has  been  njade  affecting  the  rights  of  the 
party ,'^  therefore  an  appeal  does  not  lie  from  the  surrogate's 
order  appointing  commissioners  to  admeasure  dower,**  nor 
from  an  ex  parte  ordei-  upon  the  ground  that  it  was  irregu- 
larly granted,''  nor  from  the  ortler  of  the  surrogate,  merely 
directing  that  a  j)etition  for  the  removal  of  a  guardian 
should  be  incpiired  into.^" 

Who  maij  bring  appeal.  In  addition  to  those  already 
named  as  persons  who  may  bring  an  appeal,  any  party, 
■who  appeared  before  the  surrogate,  and  whose  interests 
are  affected  by  the  decision,  may  appeal,.  A  purchaser 
■who  has  bid  ofi"  property  from  an  administrator's  sale,  may 
appeal  from  a  decision  setting  aside  such  sale.'^  A  hus- 
band cannot  appeal  in  his  own  name  alone  from  a  decree, 
affirming  the  probate  of  a  will  by  virtue  of  his  wife  being 
the  next  of  kin,'^  a  party  cannot  bring  an  appeal  unless  he 
has  an  interest  that  is  affected.'^ 

Manner  of  bringing  the  appeal.  The  first  step  to  be  taken 
in  bringing  the  ai)peal,  is  to  tile  an  appeal  with  the  surro- 
gate. The  appeal  should  be  entitled  in  the  surrogate's  court, 
should  recite  the  decree  that  has  been  made ;  state  that 
the  ai)pellant,  naming  him,  conceives  himself  aggrieved, 

• 

*  3  R.  S.,  5tli  eel,  607  (611).  '  Skidmore  v.  Shmu,  3  CIi.  Sent.,  54. 

»  3  R.  S..  5tli  ed  ,  916  (GIO).  "  Gardenierv.  Spilieman,  1 0  Joliris.,  308. 

*3  R.  S.,  5Ui  ed.,   152  (02);    WilUams  "  Skidmore  v.  Dans,  10  Pai.,  310. 

V.  Filch,  15  Barb..  654.  '"  Skidmore  v.  Shatv,  3  Cli.  Sent.,  54. 

*  Gould  V.  Peck,  11  Paige,  475.  "  Ddapaine  v.  Laivrence,  10  Pai.,  602. 
'  liiunson  V    Ward,  3  Paige,  189.  "  Foster  v.  Fofiter,  7  Pai.,  48. 
"Smith  V.  Van  Kuren,  2  Barb.  Ch.,  473.  "  Jicid  v.  Vanderheijden,  5  Cow.,  719. 


140  ADMINISTllATION   OF   CIVrL  JUSTICE. 

and  appeals  from  the  same  or  some  specified  part  thereof.* 
The  filing  of  this  appeal  in  the  office  of  the  surrogate  and 
perfecting  the  same  by  giving  a  bond  when  required  by 
law,  is  deemed  a  sufficient  notice  of  such  appeal  to  the 
adverse  party,  without  any  other  notice.^ 

Bond.  If  the  appeal  from  a  decree  as  to  the  probate  of 
a  will,  the  party  filing  appeal  must,  at  the  same  time,  exe- 
cute and  file  with  the  surrogate  a  bond  in  the  penalty  of 
one  hundred  dollars  to  the  people  of  this  state,  with  such 
sureties  as  the  surrogate  shall  approve,  conditioned  for 
the  diligent  prosecution  of  such  appeal,  and  for  the  pay- 
ment of  such  costs  as  shall  be  taxed  against  him,  in  the 
event  of  his  failure  to  obtain  a  reversal  of  the  decision 
so  appealed  from.  No  appeal  is  deemed  valid  until  such 
bond  is  filed.*  In  all  other  cases  an  appeal  is  not  effectual 
until  a  bond  is  filed  with  the  surrogate,  with  two  sufficient 
sureties,  to  be  approved  by  him  in  the  penalty  of  at  least 
one  hundred  dollars,  to  the  adverse  party,  conditioned 
substantially  that  the  appellant  will  prosecute  his  appeal 
to  effect,  and  Avill  pay  all  costs  that  shall  be  awarded 
against  him  by  the  supreme  court.^ 

Stay  of  jyroceedinc/s.  An  appeal,  when  perfected,  operates 
as  a  stay  of  proceedings  upon  the  order  or  decree  appealed 
fi'om  until  such  appeal  be  determined,  or  until  the  com-t  to 
which  the  appeal  shall  have  been  made  shall  authorize  pro- 
ceedings thereon.*  The  following  cases  are  exceptions  to 
this  rule :  Appeals  from  the  order  of  the  surrogate  appoint- 
ing a  collector  or  special  administrator  of  the  estate  of 
any  deceased  person ;  from  orders  directing  the  sale  of  per- 

*form  op  an  appeal. 

In  Surrogate's  Court  —  Albany  County. 

In  the  matter  of  proving  the 

last  will  and  testament 

of 

Jolm  Doe,  deceased. 

A  sentence  or  decree  having  been  entered  in  the  office  of  the  surrogate  of  the 
county  of  Albanj',  on  tlie  l.st  day  of  August,  18G4,  admitting  to  probate  a  certain 
instrument  in  writing,  as  tlie  last  will  and  testament  of  the  late  John  Doe,  deceased, 
and  John  Doe,  Jr.,  conceiving  himself  aggrieved  by  the  said  sentence  or  decree, 
dotli  hereby  appeal  to  the  supreme  court  from  the  same,  and  every  part  thereof. 
Dated.  H.  TL, 

Proctor  and  Attometj  for  Appellant. 


'  3  R.  S.,  5  ed.,  OOT,  [GIL]  »  3  R.  S.,  5  ed.,  90G,  [610.1 

*      ~    ~  "  "  '     ^.  S.,  5  ed.,  906,  [610.] 


■  Before  Hon.  Israel  Lawton,  surrogate. 


3  R.  S.,  5  ed.,  151,  66;  Laws  1830,     *3  R. 
cIl  320,  §  15. 


APPEALS   FROM   SURROGATE'S   COURT.  141 

isliable  property;  from  orders  appointing  appraisers  of 
personal  pro^^erty;  and  from  all  orders  for  the  service 
and  publication  of  notices  shall  not  stay  or  affect  any  pro- 
ceedings under  such  orders.^  Appeals  from  orders  for  the 
commitment  or  awarding  ijrocess  for  the  commitment  of 
any  executor,  administrator,  or  guardian,  for  not  returning 
au  inventory,  rendering  an  account,  or  obeying  any  other 
order  of  a  surrogate ;  and  appeals  from  orders  for  the  com- 
mitment of  any  person  refusing  to  obey  a  subpoena,  or  to 
testify  when  required  according  to  law,  will  not  stay  the 
execution  of  such  orders  or  process  unless  the  party  commit- 
ted shall  give  a  bond  at  the  time  of  the  filing  of  the  appeal, 
executed  by  the  api)ellant  and  two  sufficient  sureties  to  be 
approved  by  the  surrogate  to  the  people  of  this  state,  in  a 
sufficient  penalty,  not  exceeding  one  thousand  dollars,  con- 
ditioned, that  if  the  order  appealed  from  be  affirmed,  such 
person  will,  within  twenty  days  after  such  affirmance,  sur- 
render himself  to  the  custody  of  the  sheriff  to  whom  he  shall 
have  been  committed  in  obedience  to  such  order  and  pro- 
cess.^ 

Petition  of  appeal.  Within  fifteen  days  after  the  appeal  is 
entered  in  the  surrogate's  court,  the  a[)pellant  must  file  a 
petition  of  appeal,  addressed  to  this  court,  with  the  clerk  of 
the  county  in  which  the  order,  sentence  or  decree  appealed 
from  was  made.  The  petition  of  appeal  must  briefly  state 
the  general  nature  of  the  proceedings,  and  of  the  sentence, 
order  or  decree  appealed  from,  and  must  specify  part  or 
parts  thereof  complained  of  as  erroneous,  in  Avhich  case  it 
will  be  sufficient  to  state  that  the  same  and  every  part 
thereof  is  erroneous.  Where  the  appeal  is  from  a  sentence 
or  decree  on  the  settlement  of  the  accounts  of  an  executor, 
administrator  on  guardian,  if  the  appellant  wishes  to  re- 
view the  decision  as  to  the  allowance  or  rejection  of  any 
particular  items  of  the  account,  such  items  shall  be  specified 
in  the  petition  of  appeal ;  or  the  allowance  or  disallowance 
of  any  such  items  shall  not  be  a  sufficient  ground  for  re- 
versing or  modifying  the  sentence  or  decree  appealed  from.^ 

In  addition  to  this  the  petition  should  name  all  persons 
who  are  to  be  made  parties  repondent  to  the  appeal.  As 
such,  all  such  i)ersons  as  are  interested  in  sustaining  the 
order  or  decree  appealed  from  should  be  named  as  res[)ond- 


•  3  R.  S.,  5  ed.,  90G,  [610  1 

*  3  R.  S.,  6  ed.,  90G,  [610.J 


=■  S.  C.  Rule,  44. 


142  ADMINISTRATION   OF   CIVIL  JUSTICE. 

>cnts,^  and  should  piny  that  the  respondents  named  be  re- 
quired to  answei'  tlie  petition  of  appeal.'- 

If  the  decree  is  not  claimed  to  be  wholl}-  erroneous,  the 
errors  claimed  should  be  set  out ;  and  this  extends  to  i)er- 
sons  interested  in  maintainin<j  the  order  or  decree  ai)pealed 
from,  although  they  were  not  parties  before  the  surrogate.^ 
The  heirs,  next  of  kin  and  legatees  are  necessary  parties 
to  an  appeal  from  an  order  of  the  surrogate  admitting  a 
will  to  probate.*  Where  the  surrogate  denies  an  a])plica- 
tion  for  the  appointment  of  a  guardian,  and  the  appellant 
a[)pea]s,  he  must  make  the  infant  respondent,  the  relatives 
of  the  infant  who  opposed  the  appointment  are  not  proper 
l)arties  to  the  ai)peal.^* 

Wh(;re  resjwiident  is  a  minor.  Where  the  respondent  is  a 
minor,  if  he  does  not  procure  a  guardian  ad  litem  upon  the 
appeal  to  be  appointed  within  tAventy  days  after  the  tiling 
of  the  x)etition  of  appeal,  the  api)ellant  may  apj)!}'  to  a 
justice  of  the  supreme  court  ex  parte  for  the  appointment 
of  such  guardian.*^ 

Where  appelant  omits  to  file  petition  of  appeal  within 
fifteen  days  after  the  api)eal  is  entered  in  the  court  below, 
the  appeal  shall  be  considered  waived;  and  any  party 
interested  in  the  proceedings  in  that  court  may  apply  to 
this  court  ex  parte  to  dismiss  the  appeal  with  costs.''  An 
affida\it  should  be  prei)ared  showing  wlien  the  ai)peal  was 
entered  in  the  surrogate  court,  and  that  more  than  fifteen 
days  have  elapsed  and  no  petition  of  api)eal  has  been  tiled. 

*  PETITION   OF  APPEAL. —  FORM. 

SupREiiE  Court. 
A.  B.,  administrator  kc,  of  C. "] 
D.,  deceased,  Appellant,       | 

E.  F.,  H.  I.  &  J.  K.,  Respond-  | 
ents.  J 

To  the  Supreme  Court  of  the  Slate  of  New  York: 

The  petition  of  the  abovenaraed  appellant  respectfully  sUoweth:    Thnt  on  the 
1st  day  of  ,  18G-t,  a  sentence  or  decree  of  the  snrroprate  of  the  county  of 

Albany  was  made,  ■w:li3reby  it  was  decreed  and  determitied  [Mere  state  what  wag 
determined  by  the  decree.]  And  tlio  said  appellant  avers  that  said  decree  is  erro- 
neous and  ought  to  be  reversed,  and  the  said  appellant  prays  that  the  abovenamed 
re.spondents  be  required  to  answer  this  petition  of  appeal. 

A.  B.,  Administrator. 


'  Gikrivt  V.  Rea,  9  Pai.,  66;   Broiun  v.  =  Wilcox  v.  Smith,  26  Barb.,  216. 

Ecam,  .S-l  Barb..  594.  *  Oilman  v.  Oilman,  35  Barb..  591. 

"  Vulantine  v.    Valentiiie,    2   Barb.    Ch.,  ^  Kellinger  v.  Roe,  7  Paige,  362. 

434.  '  Supreme  Court,  Rule  44. 


APPEALS  FROM  SURROGATE'S  COURT.       143 

Upon  this  an  ex  parte  motion  is  made  at  special  term,  and 
the  order  is  procured  to  be  entered  in  the  proper  clerk's 
office. 

The  appellate  court  does  not  lose  jurisdiction  by  the 
mere  omission  of  the  appellant  to  tile  the  petition  of  ajjpeal 
in  time,  nor  can  the  surrogate  proceed  on  his  order  or  de- 
cree as  if  no  appeal  had  l)een  taken  until  the  order  dis- 
missing the  appeal  has  been  entered.' 

Serving  petition  of  appeal.  After  the  petition  has  been 
filed,  the  appellant's  attorney  should  enter  a  common  rule 
that  the  respondent  in  the  petition  of  appeal  answer  the 
same  within  twenty  days  after  the  service  of  a  copy  of 
the  petition  and  notice  of  the  order,  or  that  the  appellant  be 
heard  ex  parte:  the  appellant  should  then  cause  a  copy  of 
such  ijetition  of  appeal,  and  notice  of  such  order  to  be 
served  upon  the  attorney  of  such  respondent,  if  he  has 
api)eared  either  in  the  sui)reme  court  or  the  court  below 
by  an  attorney  of  a  court  of  record,  or  upon  the  surrogate 
if  he  has  not  appeared  by  such  attorney.^ 

If  the  minor  has  api)eared  by  guardian  ad  litem  in  the 
appellate  court,  the  ap[)ellant  may  enter  an  order,  of  course, 
that  the  guardian  ad  litem  of  the  respondent  answer  within 
twenty  days  after  service  of  a  copy  thereof  and  notice  of  the 
order,  or  that  an  attachment  issue  against  said  guardian.' 

Where  respondents  fail  to  answer.  Where  the  respondent 
is  an  adult,  u[)on  tiling  due  proof  by  affidavit,  of  the  ser- 
vice of  the  petition  of  appeal  and  notice  of  an  order,  that 
the  respondent  answer,  and  that  no  answer  has  been 
received,  the  appellant  may  have  an  order  of  course  that 
the  appeal  be  heard  ex  parte  as  against  such  res])ondent. 

If  a  guardian  ad  litem  omits  to  answer  within  the  time 
mentioned  in  the  order  served  on  him,  an  application  for 
an  attachment  ag-ainst  him  should  be  niade. 

Dismissinfj  appeal.  If  a  i)arty  to  the  proceedings  below 
whose  interests  are  elt'ected  by  the  ai)peal,  is  not  made  a 
party  by  the  petition  of  api)eal,  he  may  apply  to  dismiss 
the  appeal  as  to  himself  with  costs,  so  far  as  it  stajs  pro- 
ceedings in  the  court  below  to  his  injury;'  but  if  no 
motion  is  made  to  stay  or  dismiss  the  appeal,  on  the 
ground  of  defect  of  parties,  and  the  absent  parties  liave 
not  taken  an  appeal  themselves,  nor  applied  to  be  made 

'  HalsKy  V.  Van  Amringe,  4  Paige,  219.     '  Gardner  v.  Gardner,  5  Pai.,  170. 
•  Supreme  Court,  Rule  44. 


144  ADMINISTRATION   OF   CIVIL  JUSTICE. 

parties  to  the  appeal,  the  court  cannot,  upon  such  appeal, 
reverse  the  decree  appealed  from,  though  the  surrogate 
may  have  erred  in  his  views  of  the  rights  of  the  parties.^ 

Notice  of  api)earance  and  order  that  petition  of  appeal  he 
served.  If  the  appeal  is  ascertained  to  be  regularly  brought, 
the  hrst  step  on  the  part  of  the  respondent  is  to  give 
notice  of  appearance,  and  if  the  petition  of  appeal  is  tiled 
and  has  not  been  served  on  the  adverse  party,  the  respond- 
ent may  have  an  order  of  course  that  the  appellant  deliver 
a  copy  of  the  petition  of  appeal  to  the  attorney  or  guardian 
ad  litem  of  the  respondent,  within  ten  days  after  the  service 
of  notice  of  such  order,  or  that  the  appeal  be  dismissed, 
and  if  the  same  is  not  delivered  within  the  time  limited 
by  such  order,  the  respondent,  upon  due  notice  to  the 
adverse  party,  may  apply  at  si^ecial  term  to  dismiss  the 
appeal  with  costs.^ 

Ansiver.  The  petition  of  appeal  having  been  served, 
the  respondent  must,  within  the  time  prescribed  by  the 
rule  to  answer,  tile  and  serve  his  answer  upon  the  appel- 
lant's attorney.  The  answer  should  admit  or  deny  the 
truth  of  the  allegations  of  the  petition  of  appeal,  and 
pray  for  an  affirmance  of  the  order  or  decree  appealed 
from  with  costs,  and  it  may  also  specify  any  items  in  the 
account  (where  the  appeal  is  from  an  order  or  decree  on 
accounting),  as  to  which  he  supposes  the  sentence  or 
decree  is  erroneous  as  against  him,  and  in  favor  of  the 
appellant  f  but  it  would  seem  that  where  the  alleged  error 
is  against  him,  and  in  favor  of  another  respondent,  he 
must  resort  to  a  cross-appeal.*^ 

Meturn.  The  appellant  should,  without  delay,  after  he 
has  entered  his  appeal,  cause  a  transcript  of  all  the  pro- 

*  answer  to  petition  op.  appeal  —  form. 
Supreme  Court. 

A.  B.  administrator,  &c.,  of  C.  D.,  "| 

deceased,  appellant  I 

V.  f 

E.  T.  and  others,  respondents.      J 

The  answer  of  E.  F.,  respondent,  to  the  petition  of  appeal  in  this  cause. 
The  defendant  admits  that  a  decree  or  sentence  of  tlie  date,  tenor  and  efTect  in 
the  petition  of  appeal  set  forth,  was  made  by  the  surrof^ate  of  the  county  of 
Albany,  and  this  respondent  is  advised  and  believes  and  submits  that  such  decree 
or  sentence,  so  far  as  the  same  is  complained  of  by  said  petition  of  appeal,  is  just 
and  equitable,  and  ouglit  to  be  in  the  respects  complained  of,  afBrmed,  with  costs 
of  this  appeal  to  be  judged  to  this  respondent. 

J.  J.,  Respondent's  attorney. 

'  Broion  v.  Evans,  34  Barb.,  594.  *  Collins  v.  Hoxie,  9  Pai.,  81. 

'  Supremo  Court,  E.ulo  44. 


APPEALS  FKOil  SUEEOGATE'S  COUET.  145 

ceedings  before  the  surrogate,  in  the  matter  appealed  from, 
to  be  made,  authenticated  and  filed  in  the  ofiice  of  the 
clerk  of  the  county  where  the  surrogate  court  was  held ; 
where  the  appeal  is  from  the  decree  of  the  surrogate  on 
the  proof  of  a  will,  the  surrogate  should  return  a  copy  of 
such  appeal,  and  of  the  will  and  of  all  papers,  documents 
and  testimony  produced  before  him,  in  relation  to  the 
subject  of  the  appeal,  duly  certified  by  him,  under  his  seal 
of  ofiice,  with  a  statement  of  the  decision  made  by  him, 
and  the  reasons  of  such  decision.^ 

Compelling  return.  If  the  surrogate  omit  to  make  and 
file  his  return  within  a  reasonable  time,  the  supreme  court 
may  enforce  the  making  of  such  return  by  attachment,  in 
the  same  manner  and  with  the  like  eftect  as  in  case  of  a 
witness  refusing  to  obey  a  subpoena  to  attend  any  circuit ; 
but  such  return  will  not  be  enforced,  without  due  proof 
that  the  surrogate  has  been  paid  or  tendered  his  fees 
therefor.^ 

Failure  to  procure  return.  If  the  appellant  does  not, 
within  a  reasonable  time,  procure  the  return  to  be  filed, 
the  respondent  may  move,  on  notice,  to  dismiss  the  appeal, 
and  the  court  will  thereupon  dismiss  the  appeal,  unless  the 
delay  is  shown  not  to  be  unreasonable  or  is  satisfactorily 
excused. 

Defective  return.  Either  party,  claiming  that  the  return 
is  defective,  may  move  in  the  appellate  court  for  a  further 
or  amended  return. 

Hearing  of  appeal.  The  return  having  been  filed,  and  the 
respondents  having  answered  the  petition  of  ajjpeal  or  been 
defaulted  for  not  answering,  the  case  is  ready  for  hearing. 
The  papers  to  be  furnished  the  court  by  the  appellant, 
are,  a  copy  of  the  appeal  as  entered,  a  copy  ot  the  ijetition 
of  appeal  and  answer,  and  a  copy  of  the  surrogate's  return.^ 
The  hearing  of  the  apx^eal  is  an  enumerated  motion,^  and 
the  case  must  be  noticed  and  put  on  the  calendar,  the 

If  tlie  respondent  suppose  the  decree  to  be  erroneous  against  him  in  any  respect, 
he  can  set  it  forth  in  his  answer  after  this  form : 

And  tills  respondent  avers  that  the  said  decree  improperly  omits  to  charge  the  said 
appellant  with  Ihe  interest  on  ten  thousand  dollars,  moneys  of  the  intestate,  that 
was  received  by  the  appellant  as  administrator,  and  used  by  him  as  his  own,  and 
as  to  tills  matter  the  same  respondent  says  said  decree  is  erroneous,  and  ought  to 
be  reversed  or  corrected. 


'  3  R.  S.,  5th  ed.,  905,  [608.]  '  Supreme  Court,  Rule  40. 

'  Supreme  Court,  Rule  44. 

U.— 19 


146  ADMDTTEATION   OF   CIVIL  JUSTICE. 

papers  printed,  and  the  case  brought  to  argument  in 
the  same  manner  as  an  appeal  from  a  judgment  of  an 
inferior  court.^ 

Determination  of  the  appeal.  Upon  these  appeals  the 
whole  case  is  examined,  as  well  upon  the  facts  as  the  law.^ 
If  the  appeal  is  from  a  decree  made  upon  the  probate  of  a 
will,  the  court  may,  by  order,  reverse  such  decree  ;  and  if 
such  reversal  be  founded  upon  a  question  of  fact,  it  must 
direct  an  issue  to  be  made  up  to  try  the  questions  arising 
upon  the  application  to  prove  such  will,  and  shall  direct 
the  same  to  be  tried  at  the  next  circuit  court  to  be  held  in 
the  county  where  the  surrogate's  decision  was  made.'  In 
other  cases,  the  supreme  court,  on  reversing  a  surrogate's 
decree,  may  make  a  final  determination  of  the  controversy, 
and  is  not  required  to  remit  the  case  for  a  new  hearing 
before  the  surrogate  ;*  and  this  may  be  done,  though  it 
may  require  a  further  investigation  of  facts.^  The  supreme 
court  may  merely  affirm  or  reverse  the  decree  appealed 
from,  leaving  the  parties  to  proceed  anew  in  the  court 
below  ;  or  the  court  may  remit  the  case  to  the  surrogate's 
court,  with  directions  as  to  the  manner  of  proceeding 
therein.*^  The  appellate  court  will  more  readily  reverse 
the  decree  of  a  surrogate  on  conflicting  evidence,  than  it 
will  set  aside  a  verdict  of  a  jury  f  and  where  the  evidence 
was  clear  on  one  part,  but  somewhat  impeached  ou  the 
other,  the  court  reversed  the  decree  in  order  to  have 
the  case  submitted  to  a  jury.^  The  decree  of  a  surrogate 
will  not  be  reversed  merely  because  of  there  being  a  con- 
flict of  evidence  between  the  subscribing  witnesses  and 
another  person  as  to  what  took  x)lace  at  the  signing  of  the 
will.  The  surrogate  is  the  best  judge  of  the  degree  of 
credit  to  which  the  witnesses  were  entitled.^  IS'or  will  the 
court  reverse  a  decree  to  which  the  respondent  is  justly 
entitled  upon  the  merits,  because  a  contumacious  witness 
of  the  appellant  refused  to  obey  the  process  of  the  court, 
or  to  furnish  the  evidence  which  it  demanded,  or  because 
the  surrogate,  it  may  be,  improperly  refused  to  punish 
him.i" 


*  Ante,  pp.  134,  135.  '  JIason  v.  Janes,  2  Bradf..  181 ;    Clay- 
'  Schenck  v.  Dart,  22  N.  Y.,  420.  ton  v.  Wardell,  2  Bradf.,  1. 

*  3  R.  S.,  5th  ed.,  151,  [66.]  '  Lake  v.  Runney,  33  Barb.,  49. 

*  Schenck  v.  Dart,  22  N.  Y.,  420.  "  Patchen  v.  Devin,  37  Barb.,  430. 

*  Van  Wyck  v.  Alley.  Hopk.,  552,  Cau-     '  Rohinson  v.  Smith,  13  Abb.,  359. 

joUe's  Appeal,  9  Abb.,  393.  "  Heg&man  v.  Fox,  31  Barb.,  475. 


APPEALS  FROM  A  SINGLE  JUDGE.  147 

Costs.  This  appeal  for  all  purposes  of  costs  is  deemed 
an  action  at  issue  on  a  question  of  law  from  the  time  the 
same  was  brought  into  the  supreme  court,  and  costs  thereon 
will  be  awarded  and  collected  in  such  manner  as  the  court 
shall  direct  according  to  the  nature  of  the  case.^  The 
prevailing  party  is  not,  as  a  matter  of  right,  entitled  to 
costs.  Tlie  court,  in  its  discretion,  determines  which  jjarty 
is  entitled  to  costs,  and  specifies  the  determination  in  its 
decision.  If  nothing  is  said  in  the  decision  as  to  costs, 
neither  jjarty  can  recover  costs  against  the  other. 

Judgment.  If,  on  the  hearing  of  the  ajjpeal,  the  order  or 
decree  of  the  surrogate  is  reversed,  and  further  proceed- 
ings are  had  in  the  supreme  court,  judgment  should  not 
be  entered  until  such  i3roceedings  are  concluded.  If  the 
determination  does  not  contemplate  any  further  proceed- 
ings in  the  appellate  court,  judgment  should  be  at  once 
entered;  and  where  the  judgment  directs  any  further  pro- 
ceedings by  the  surrogate,  a  copy  of  the  judgment  should 
be  served  on  him. 

Appeal  to  the  court  of  appecds.  An  appeal  lies  from  the 
judgment  of  the  supreme  court  to  the  court  of  appeals 
where  the  whole  case  can  again  be  examined,  as  well  upon 
the  facts  as  the  law.^ 


CHAPTER  IX. 


Appeals  ix  the  supreme  court  and  the  superior 
court  and  court  of  coivimon  pleas  of  the  city  of 
New  York  from  a  single  judge  to  the  general 

TERM. 

Ajypeals  from  judgments. 

In  the  supreme  court,  the  superior  court  of  the  city  of 
New  York,  and  the  court  of  common  pleas  for  the  city  and 
county  of  New  York,  an  appeal  may  be  taken  to  the 
general  term  from  a  judgment  entered  upon  the  report  of 
a  referee,  or  the  direction  of  a  single  judge  of  the  same 

'  Code,  §  318.  "  Sdienck  v.  Dart,  22  N.  Y.,  420. 


148  ADMUNISTRATION   OF   CIVIL  JUSTICE. 

court,  in  all  cases  ;^  so  that,  whether  the  trial  is  before  a 
referee,  a  single  judge  or  a  jury,  the  judgment  may  be 
reviewed  in  the  general  term  upon  appeal,  and  it  seems 
that  whatever  may  have  been  the  mode  of  trial,  whethsi? 
by  judge,  referee  or  jury,  the  judgment  in  form  is  entered 
as  if  directed  by  a  single  judge.^ 

It  is  only  a  final  judgment  that  is  appealable,  neither 
an  interlocutory  judgment  nor  one  entered  by  default  is 
appealable  f  nor  should  the  appeal  be  brought  from  such 
a  final  judgment  until  it  is  perfect  and  complete  so  as  to 
be  capable  of  execution.* 

An  appeal  may  also  be  taken  in  like  manner  from  any 
judgment  or  final  determination  made  at  special  term  in 
auy  special  proceeding  therein/ 

When  appeal  must  'be  hrought  The  appeal  must  be  taken 
within  thirty  days  after  written  notice  of  the  judgment.^ 
Nothing  short  of  a  written  notice  of  the  judgment,  served 
upon  the  opposite  party  or  his  attornej',  will  limit  the  time 
in  which  to  appeal.  Actual  knowledge  of  the  entry  of 
the  judgment  by  the  opposite  party  or  his  attorney  will 
not  supersede  the  written  notice."  A  party  is  held  to  strict 
practice  where  he  undertakes  to  limit  the  time  to  appeal.'* 
The  notice  of  the  entry  of  judgment  should  be  so  perfect 
in  form  that  when  served,  the  party  desiring  to  appeal, 
will  be  able  therefrom  to  derive  all  the  knowledge  of  the 
judgment  that  will  be  essential  to  enable  him  to  perfect 
an  appeal,  so  that  while  the  judgment  is  kept  open  as  to 
the  amount  of  the  costs,  or  in  auy  other  respect,  no  notice 
can  be  given  which  will  have  the  effect  to  limit  the  time 
to  api)eal.^ 

In  computing  the  time  after  service  of  a  notice  within 
which  an  appeal  may  be  brought,  the  day  of  service  of 
the  notice  is  excluded,^"  and  where  the  notice  is  served  by 
mail,  double  time  is  allowed,  so  that  the  appeal  may  be 


^  Code,  §  343.  ^  Hancock  v.  Hancock,  22  N.  Y.,  568. 

*  Don  V.  Birge,  8  Barb.,  1^51 ;  Swartiuout  v.  Curtis,  4  N".  Y.,  415 ;  Beebe  v.  Griffin, 
6  lb.,  465;  Paddock  v.  Springfield  las.  Co.,  12  Id.,  591;  Lawrence  v.  Fowler,  20 
How.  Pr.,  407  ;  Heineman  v.  Waterhury,  5  Bosw.,  686. 

*  LentiUioio  v.  Mayor,   &c.,  of  N.  Y.,  3     ''  Staring  v.  Jones,  13  How.  Pr.,  423; 

Sandf.,  721.  Hankin  v.  Fine,  4  Abb.,  309. 

'  Laws  of  1854,  cli.  270,  p.  592.  "  Torks  v.  Feck,  17  How.  Pr.,  192. 

°  Code,  §  332. 

*  Sherman  v.  Wells,  14  How.  Pr.,  522;  Fry  v.  Bennett,  1  Abb.  Pr.,  352; 
Valton  V.  National  Loan  Co.and  Life  Insurance  Society,  19  How.  Pr.,  515. 

"  Gault  y.  Finch,  24  How.  Pr.,  193. 


APPEALS   FROM  A   SIXGLE  JUDGE.  149 

brought  within  sixty  days  from  the  time  the  notice  was 
mailed.^ 

Notice  of  appeal.  The  notice  of  appeal  is  given,  and  the 
clerk's  return  is  made,  in  the  same  manner  as  on  an  api)eal 
to  the  supreme  court  from  the  judgment  of  an  inferior 
court.^ 

Security — Stay  of  proceedings.  Unlike  the  appeals  which 
have  already  been  referred  to,  it  is  not  necessary,  to  per- 
fect an  appeal  of  the  class  now  being  treated  of,  to  give 
any  security  whatever.  Such  appeal,  however,  does  not 
stay  proceedings  upon  the  judgment  appealed  from.^ 

Where  a  stay  of  proceedings  is  desired,  either  of  two 
courses  may  be  pursued:  First,  security  may  be  given  as 
is  required  upon  an  appeal  to  the  court  of  appeals.*  When 
such  security  is  duly  made  and  filed,  it  operates  as  a  stay 
without  any  order  thereon,  to  the  same  extent  that  pro- 
ceedings are  stayed  by  an  appeal  to  the  court  of  appeals 
with  the  like  security ;  but  in  order  thus  to  operate  as  a  stay, 
the  undertaking  must,  as  in  the  court  of  appeals,  be  tiled 
and  served  with  the  notice  of  appeal  f  Second,  the  court 
or  a  judge  thereof  may  order  the  proceedings  to  be  stayed 
on  such  terms  as  to  security,  or  otherwise,  as  may  be  just.^ 
This  order  could  probably  be  made  by  the  court  ex  parte, 
but  can  only  be  made  by  a  judge  out  of  court  upon  no- 
tice. As  no  court  would  be  likely  to  grant  an  order  of  this 
character  ex  parte;  the  better  practice  is  to  prepare  an 
affidavit  of  the  appellant,  showing  what  the  judgment  is 
that  has  been  appealed  from,  the  bringing  of  the  appeal, 
and  the  reasons  for  claiming  either  that  no  security  should 
be  required,  or  that  security  should  not  be  required  to  the 
same  extent  as  on  appeal  to  the  court  of  appeals :  upon 
this  affidavit,  procure  an  order  from  a  judge  that  the  re- 
spondent show  cause  before  him  why  the  proceedings 
should  not  be  stayed  until  the  determination  of  the 
appeal.  If  this  order  fixes  a  time  within  twenty  days  for 
showing  cause,  the  judge  may  incorporate  in  his  order  a 
clause  staying  proceedings  on  the  judgment  in  the  mean- 
time. This  application  for  a  stay  is  addressed  wholly  to 
the  discretion  of  the  court  or  judge.  It  is  improbable  that 
the  court  will  grant  the  stay  and  limit  or  dispense  with 
security  altogether,  unless  some  good  reason  is  shown  for 

'  Dorlon  v.  Lewis,  7  How.  Pr.,  132.  *  See  ante,  p.  119. 

'  See  ante,  p.  132.  ^  Smith  v.  Ileermance,  18  How.  Pr.,  261. 

»  Code,  §  348.  *  Code,  §  348. 


150  ADMOaSTRATION  OF   CIVIL  JUSTICE. 

it  by  the  appellant.  The  case  should,  therefore,  be  made 
a  part  of  the  motion  papers  for  the  stay,  so  that  the  court 
may  look  into  it  and  see  what  are  the  grounds  of  appeal.^ 
The  circumstances  of  the  axjpellant  may  also  be  considered, 
and  upon  all  the  facts  the  court  or  judge  is  to  make  such 
order  as  to  security,  or  otherwise,  as  shall  be  just.  It 
would  seem  that  a  county  judge  cannot  grant  this  order.^ 

Where  a  stay  is  granted  upon  filing  security,  the  order 
should  definitely  specify  what  security  is  required  and 
when  it  must  be  filed.  Where  the  appeal  is  from  a  judg- 
ment or  final  determination  in  a  special  proceeding,  pro- 
ceedings upon  the  judgment  are  not  stayed  as  a  matter 
of  right  by  giving  the  security  required  on  an  appeal  to 
the  court  of  appeals,  but  the  question  is  in  all  cases  left 
to  the  discretion  of  the  court,  and  the  proceedings  are  not 
stayed  unless  the  court  or  a  judge  thereof  so  order.^ 

Hoiv  brought  to  hearing.  The  case  is  prepared,  printed 
and  brought  to  hearing  in  the  same  manner  as  an  appeal 
to  the  sujDreme  court  from  an  inferior  court.^ 

Motion  to  dismiss.  If  the  judgment  appealed  from  is  not 
appealable,  or  the  appeal  is  not  properly  brought,  the 
respondent  should  move  to  dismiss  the  appeal.  This 
motion  should  be  made  in  the  general  term.* 

Hearing  and  determination.  The  only  opportunity  afford- 
ed for  reviewing  questions  of  fact,  where  the  trial  was 
before  a  single  judge  or  a  referee,  is  by  an  appeal  to  the 
general  term.*  The  practice  in  this  respect  is  analogous 
to  the  old  practice  of  moving  to  set  aside  a  report  as  being 
against  the  weight  of  evidence.^ 

And  where,  ordinarily,  there  is  fair  evidence  to  support 
a  finding,  the  court  will  not  disturb  it;  yet,  whenever 
such  finding  is  clearly  against  the  body  of  the  evidence, 
although  there  may  be  some  evidence  to  support  it,  a  new 
trial  will  be  granted.^  If  the  trial  was  by  jury,  and  it  is 
claimed  that  the  verdict  is  against  evidence,  the  question 
is  presented  by  motion  at  a  special  term  upon  a  case 
made,  and  an  appeal  lies  from  the  order  of  the  special 
term  to  the  general  term,  and  it  may,  on  such  appeal, 
review  the  question  of  fact,  and  decide  whether  the  verdict 


'  Otis  V.  Spencer,  8  How.  Pr.,  174.  *  Code,  §  268. 

=  Laws  of  1854,  ch.  270,  p.  592.  •  Thompson  v.  Menck,  22  How.  Pr.,  431 ; 

'  Code,  §  348 ;  see  ante,  pp        .  Gage  v.  Parker,  25  Barb.,  141, 

*  Bradley  v.  Van  Zandt,  3  Code  Rep., 
217. 


APPEALS  FR03I  A   SINGLE  JUDGE.  151 

is  against  evidence.  It  is  the  legal  duty  of  tliis  court  to 
see  that  the  issues  of  fact  have  been  fairly  tried ;  and  if 
the  verdict  or  the  finding  of  facts  is  so  clearly  without  or 
against  evidence  as  to  satisfy  the  court  injustice  has  been 
done,  the  court  will  set  aside  the  verdict  or  reverse  the 
judgment,  and  order  a  new  trial.^  To  set  aside  a  verdict  in 
a  case  where  there  was  evidence  on  both  sides,  there  must 
be  such  a  preponderance  as  to  satisfy  the  court  that  there 
was  either  an  absolute  mistake  on  the  part  of  the  jury,  or 
that  they  acted  under  the  influence  of  prejudice,  passion 
or  corruption.^  The  court  will  not  interfere  with  decisions 
of  questions  of  fact  that  are  fairly  deducible  from  conflict- 
ing evidence;^  yet  where  the  conflict  arises  from  the  parties 
or  witnesses  contradicting  each  other,  and  either  party 
fairly  corroborates  his  testimony,  and  the  jury  find  against 
that  side,  the  decision  will  be  reversed.'*  Where  it  is 
apparent  from  the  case,  that  the  plaintiff  would  in  any 
event  have  only  been  entitled  to  a  nominal  verdict,  and 
the  jury  give  a  verdict  for  the  defendant,  the  court  will 
not  set  aside  the  verdict,  although  it  may  seem  to  be 
against  the  weight  of  evidence.  It  is  deemed  unwise  to 
encourage  petty  litigation  by  giving  the  chance  of  more 
than  one  trial.^  Although  no  good  reason  is  given  why 
it  is  not  just  as  essential  to  the  respect  of  the  laws  and 
the  administration  of  justice,  that  the  truth  should  be 
determined  in  one  case  as  another,  it  seems  to  be  adjudi- 
cated in  a  great  many  cases,  that  where  the  verdict  is  in 
favor  of  the  defendant  in  an  action  for  a  penalty,  or  for 
a  recovery  in  the  nature  of  a  penaltj^  the  verdict  will  not 
be  disturbed,  even  if  the  court  is  satisfied  that  the  verdict 
is  against  evidence.^ 

Upon  the  hearing,  the  appellate  court  should  examine  all 
decisions  upon  questions  of  law,  whether  upon  the  admis- 
sibility of  evidence  or  otherwise,  that  were  made  upon  the 
trial,  and  are  properly  presented  in  the  case.  And  for  any 
erroneous  decision  of  a  question  of  law  which  arises  on 
the  trial,  which  was  duly  excepted  to  in  an  action  at  law, 
the  court  should  reverse  the  judgment  unless  it  can  see  that 

'  Adsit  V.  Wilson,  7  How.  Pr.,  64.  ■•  Boijdv.  Colt,  20  How.  Pr.,  384 ;  ffart- 

«  Cohen  v.  Dupont,  1  Sandf.,  260;  ITeri-  man  v.  Proudfit,  6  Bosw.,  191. 

io^e  V. //■««,  33  Barb.,  347.  '■  Hopkins  V.    Grinnell,  28   Barb.,    533; 

*  Smith  V.  Tiffany,  36  Barb.,  23 ;  Mat-  Hyatt  v.  Wood,  3  John.<3.,  239. 

thews  V.   Foultney,  33  Barb.,  127 
"  Overseers  of  Rochester  v.   hunt,    15  Wend.,   565;  Mansfield  v.    Wheeling,   23 
Wend.,  579;  Wheeler  v.  Calkins,  17  How.  Pr. ;  Lawyer  y,  Smitli,  1  Den.,  207. 


152  AD]\nNISTRATION  OF  CIVIL  JUSTICE. 

the  party  against  whom  the  decision  was  made  could  not 
have  been  prejudiced  thereby;^  but  if  the  suit  is  of  an 
equitable  nature,  a  new  trial  should  not  be  granted  if  it 
appear  that  the  judgment  is  substantially  right,  though 
there  were  technical  and  unimportant  errors  committed 
on  the  trial.  The  court  will  also  examine  and  determine 
any  conclusions  of  law  upon  questions  that  are  involved 
in  the  case  to  which  exceptions  were  duly  taken. 

How  determined.  The  court  may  reverse,  affirm  or  modify 
the  judgment  in  the  respect  mentioned  in  the  notice  of 
appeal,  and  as  to  any  or  all  the  jjarties,  and  may,  if  neces- 
sary or  proper,  order  a  new  trial.^  If  no  material  error  has 
been  committed,  it  affirms  the  judgment ;  if  an  error  has 
been  committed,  and  it  is  manifest  that  the  prevailing 
party  in  the  court  below  cannot  legally  recover,  the  appel- 
late court  pronounces  absolute  judgment  of  reversal ;  if 
the  errors  are  such  that  they  may  be  obviated  upon 
another  trial,  the  court  reverses  the  judgment  and  orders 
a  new  trial ;  and  a  new  trial  is  then  had  in  the  court  where 
the  cause  was  originally  tried,  according  to  the  rules  of 
law  as  settled  by  the  general  term ;  if  the  judgment  is 
erroneous  in  part  and  correct  in  part,  the  appellate  court 
may  modify  it  and  declare  what  the  judgment  should 
be,  and  so  it  may  modify  and  correct  the  judgment  as  to 
parties. 

If  the  court  reverses  the  judgment,  and  it  appears  from 
the  return  that  the  judgment  of  the  court  below  has  been 
paid,  it  will,  in  giving  judgment,  award  restitution  ;  but 
if  restitution  is  claimed  upon  other  facts  than  those  appear- 
ing upon  the  record,  application  must  be  made  to  the  court 
after  judgment  for  restitution,^  and  when  it  is  ordered,  this 
order  becomes  practicallj'"  a  part  of  the  judgment,  and  the 
payment  awarded  may  be  enforced  by  execution.^ 

Costs.  Where  the  appeal  is  from  a  judgment  in  an  action, 
if  the  judgment  is  affirmed,  the  respondent  is  entitled  to 
costs  ;  if  it  is  reversed,  the  appellant  is  entitled  to  costs  ; 
if  a  new  trial  is  ordered,  or  the  judgment  is  affirmed  in 
part  or  reversed  in  part,  the  costs  are  in  the  discretion  of 
the  court,^  and  in  special  proceedings,  costs  may  be  allowed 
in  the  discretion  of  the  court.^ 


»  WorraU  v.  Parmelee,  1  Comst.,  519.        *  Kennedy  v.  O'Brien,  2  E.  D.  Smitli,  41. 

'  Code,  §  330.  '  Code,  §  306. 

'  Sheridan  v.  Mann,  5  How.  Pr.,  201.       •  Laws  of  1854,  ch.  270,  p.  592. 


APPEALS  FKOM  A  SINGLE  JUDGE.  153 

Judgment.  When  the  appeal  has  been  decided,  a  certified 
copy  of  the  decision  of  the  general  term  should  be  pro- 
cured from  the  clerk  of  the  county  where  the  court  sat 
when  it  made  the  decision,  and  filed  in  the  office  of  the 
clerk  where  the  judgment  appealed  from  was  entered ; 
then,  if  costs  were  allowed  by  the  decision,  the  prevailing 
party  should  proceed  to  tax  his  costs  and  enter  judgment ; 
the  judgment  should  recite  the  appeal,  declare  formally 
and  particularly  what  has  been  decided  by  the  general 
term,  and  award  such  costs  as  have  been  taxed  pursuant  to 
the  decision  of  the  court ;  the  judgment  should  not  recite  the 
judgment  of  the  court  below,  and  it  must  not  anew  adjudge 
and  award  what  was  recovered  by  the  judgment  of  that 
court,  as  it  is  not  proper  that  there  should  be  two  judg- 
ments in  the  same  court  for  the  same  thing.^ 

Coercing  the  entry  of  judgment.  If  the  prevailing  party 
neglects  to  enter  judgment,  and  the  other  side,  for  the 
purpose  of  expediting  an  appeal  or  for  other  cause,  should 
desire  to  have  it  entered,  he  must  apply  to  the  court  on 
motion,  and  it  will  allow  him  to  enter  judgment,  unless 
the  prevailing  party  does  it  within  a  time  it  shall  designate 
in  its  order.* 

Appeals  from  orders. 

An  appeal  lies  to  the  general  term  of  the  supreme  court, 
to  the  superior  court  of  the  city  of  New  York,  and  to  the 
court  of  common  pleas  of  New  York,  from  an  order  made 
at  a  special  term  by  a  single  judge  of  the  same  court,  and 
to  the  general  term  of  the  supreme  court  from  the  order 
of  a  couut}^  or  a  special  county  judge,  or  by  a  recorder,  or 
by  any  recorder's  court  of  any  city*  in  any  stage  of  the 
action,  including  proceedings  supplementary  to  execution, 
and  may  thereupon  be  reviewed  in  the  following  cases  : 

1.  Where  the  order  grants  or  refuses,  continues  or 
modifies  a  provisional  remedy; 

2  When  it  grants  or  refuses  a  new  trial,  or  when  it  sus- 
tains or  overrules  a  demurrer; 

*  It  will  be  observed  that  mayor's  courts  are  omitted.  There  seems  to  be  no 
provision  for  tlic  review  of  tlie  orders  of  that  court.  Orders  made  by  a  single 
judge  at  the  circuit  are  not  made  appealable  by  the  Code. 


*  Eno  V.  Crooke,  6  How.  Pr.,  4G2.  '  Bank  of  Geneva  v.  Uotchkiss,  5  How. 

Pr.,  478. 

II.— 20 


154  ADMmiSTRATIOK   OF   CIVIL  JUSTICE. 

3.  When  it  involves  the  merits  of  the  action,  or  some 
part  thereof,  or  affects  a  substantial  right  ;* 

4.  When  the  order  in  effect  determines  the  action  and 
prevents  a  judgment  from  which  an  appeal  can  be  taken; 

5.  When  the  order  is  made  upon  a  summary  application 
in  an  action  after  judgment  and  affects  a  substantial  right  ;^ 

6.  When  the  order  is  made  in  any  special  proceeding.^ 
It  seems  that  only  the  orders  made  by  a  county  or 

special  county  judge,  in  actions  and  proceedings  in  the 
supreme  court,  are  appealable  under  the  section  of  the 
Code  last  referred  to.^ 

The  Code  has  been  very  often  amended  in  respect  to  its 
provisions  giving  the  right  to  appeals  from  orders.  As  it 
now  seems  to  be  established,  the  cases  in  which  an  appeal 
will  lie  are  so  clearly  defined  that  little  or  no  advantage 
could  result  from  an  attempt  to  give  any  of  the  very  great 
number  of  decisions  that  have  been  made  upon  questions 
as  to  whether  orders  in  the  particular  cases  were  appeala- 
ble. 

When  to  appeal.  The  appeal  may  be  brought  at  any 
time  within  thirty  days  after  notice  in  writing  of  the  entry 
of  the  order,*  except  that  when  the  order  was  made  out  of 
court  on  notice,  it  cannot  be  brought  until  the  order  has 
been  entered  with  the  proper  clerk;  and  for  the  purjjose 
of  an  appeal  any  party  affected  by  it  may  require  it  to  be 
entered,  and  it  shall  be  entered  accordingly.^ 

Notice  of  appeal.  Notice  of  appeal  distinctly  describing 
the  order  appealed  from  should  be  given  in  the  same  man- 
ner as  where  the  appeal  is  from  a  judgment. 

Hotv  prepared  for  hearing.  If  the  appeal  is  from  an  order 
granting  or  refusing  a  new  trial  upon  a  case  or  exceptions, 
or  when  it  sustains  or  overrules  a  demurrer,  it  is  an  enume- 
rated motion^  and  the  papers  must  be  printed  and  served 
and  the  cause  must  be  noticed  and  put  upon  the  calendar 
the  same  manner  as  if  the  appeal  was  from  a  judgment, 
except  in  cases  of  demurrer  the  party  demurring  must 
furnish  the  papers.'^    In  other  cases  such  appeals  are  non- 

*  Tliis  does  not  embrace  orders  in  the  discretion  of  the  court,  nor  those  relating 
to  mere  questions  of  practice. 


'  Code,  §  349.  '  Code,  §  350. 

'  Laws  of  1854,  ch.  270,  p.  592.  «  Supreme  Court,  Rule  40. 

=  Smith  V.  Hart,  ll  How.  Pr.,  203.  ''  Supreme  Court,  Rule  42. 
*  Code,  §  349. 


APPEALS  FROM  A  SLJfGLE  JUDGE.  155 

enumerated  motions,^  and  as  such,  are  noticed  for  the  first 
day  of  the  general  term ;  no  note  of  issue  should  be  served ; 
they  should  not  be  put  upon  the  calendar,  but  are  brought 
to  hearing  the  same  as  other  non-enumerated  motions  at 
general  term.  It  may  be  argued  upon  the  original  papers 
if  they  can  be  brought  into  court,  but  if  they  cannot  be 
procured  for  this  purpose,  the  moving  party  should  produce 
sworn  or  certified  copies  of  them. 

Hoiv  determined.  The  court-may  affirm,  reverse  or  modify 
the  order  appealed  from  as  it  shall  think  proper,  and  if  the 
appeal  is  from  an  order  of  the  same  court,  it  may  make 
such  order  as  it  thinks  should  have  been  made  by  the 
single  judge.  The  order  upon  the  appeal  duly  certified 
should  be  filed  "with  the  clerk  where  the  order  aj)pealed 
from  was  filed. 

Costs.  The  only  costs  the  Code  authorizes  upon  a  mo- 
tion are  ten  dollars,^  except  in  some  special  cases.^  It  seems 
that  the  only  exception  made  by  the  Code  in  this  class  of 
appeals  is  where  there  is  a  motion  for  a  new  trial  upon  a 
case.  Decisions  attempting  to  create  other  exceptions  do 
not  seem  to  be  sustained  by  the  authority  of  any  statute. 
If  the  appeal  is  from  an  order  in  a  special  proceeding,  the 
court  may,  in  its  discretion,  allow  the  same  costs  as  are 
allowed  for  similar  services  in  civil  actions;*  and  this 
service  in  a  civil  action  is  the  argument  of  a  non-enume- 
rated motion  for  which  ten  dollars  is  allowed. 

On  any  appeals  of  this  class  the  court  has  the  power  to, 
and  doubtless  should,  allow  all  legal  disbursements  in 
addition  to  the  ten  dollars  costs. 


'  Supreme  Court,  Rule  40.  '  Code,  §  SOT,  subd.  5. 

'  Code,  §  315.  *  Laws  of  1854,  ch.  270,  p.  592. 


156  ADMESISTBATIOJT  OF   CIVIL  JUSTICE. 

CHAPTER  X. 

CASE   AND  EXCEPTIOIfS. 

A  case  is  a  written  statement  of  facts  drawn  up  in  a  cer- 
tain form,  and  intended  to  be  submitted  to  a  court  of  law 
for  its  opinion  or  judgment.^  An  exception  is  an  objection 
in  writing  taken  to  the  decision  of  a  judge  or  referee  in 
the  course  of  a  trial,  or  to  the  decision  he  may  render  in  the 
action.  Under  the  former  practice  there  was  a  bill  of 
exceptions,  which  was  a  formal  statement,  in  writing, 
of  exceptions  taken  to  the  opinion,  decision  or  direction  of 
a  judge,  delivered  during  the  trial  of  a  cause,  setting  forth 
the  proceedings  on  the  trial,  the  opinion  or  decision  given, 
and  the  exception  taken  thereto,  and  sealed  by  the  judge 
in  testimony  of  its  correctness.^  Under  the  present  prac- 
tice there  is  no  paper  known  as  a  bill  of  exceptions. 

Under  the  present  i)ractice  a  case  may  be  agreed  upon 
by  the  parties,  and  the  controversy  may  be  submitted  with- 
out action  f  it  is  called  in  the  Code,  "  submitting  a  contra- 
versy  without  action."  Under  the  former  practice  it  was 
called,  "  case  agreed  on." 

In  all  instances  where  a  party  desires  to  procure  a  review 
of  the  decisions  of  the  judge  or  referee  upon  trial  or  the 
determination  thereof  by  the  judge,  referee  or  jury,  a  case 
should  be  i3repared.^ 

If  it  is  desired  to  review  the  findings  of  facts  by  the  judge 
or  referee  trying  the  cause,  or  the  verdict  of  the  jury,  Avhat 
was  formerly  called  "  a  case  for  a  new  trial "  should  be 
made,  in  which  should  be  set  forth  all  the  testimony  given 
on  the  trial,  and  the  verdict  of  the  jury  or  the  decision  of 
the  judge  or  referee,  and  upon  this,  as  has  been  shown, 
if  the  trial  was  by  jury,  a  motion  may  be  made  for  a  new 
trial  at  special  term  ;  if  the  trial  was  by  a  judge  or  referee, 
the  case  should  be  attached  to  the  judgment  roll  and  an 
appeal  brought  to  the  general  term. 

If  it  is  claimed  that  erroneous  rulings  were  made  by  the 
judge  or  referee  on  the  trial  upon  questions  of  law,  then 


•  Burrill's  Law  Die.  ^  Otis  v.  Sptwxx,  16  N.  Y.,  610. 

»Code,  372. 


CASE  AND  EXCEPTIONS.  157 

a  case  should  be  made,  setting  forth  so  much  of  the  testi- 
mony and  proceedings  as  is  necessary  to  present  the  ques- 
tions of  law,  together  with  the  exceptions  taken  on  the 
trial  to  the  decisions ;  this  is  called  "  a  case  and  excep- 
tions," and  where  the  trial  is  by  jury,  the  judge  may  order 
the  exceptions  to  be  heard  in  the  first  instance  at  general 
term,  without  the  formality  of  an  appeal. 

If  the  trial  was  by  a  judge  or  referee,  there  should  be 
included  in  the  case  the  facts  and  conclusions  of  law  found 
by  the  judge  or  referee,  and  the  exceptions  taken  to  the 
same,  if  the  exceptions  are  in  the  first  instance  taken  when 
the  case  is  jjrepared.  If  the  exceptions  have  already  been 
served,  then  such  exceptions  should  be  inserted  in  the  case. 
This  case,  when  settled,  must  be  annexed  to  the  judgment 
roll,  so  that  the  same  may  be  reviewed  by  appeal. 

Where  no  decision  was  made  upon  the  trial  to  which 
the  party  excepted,  aud  the  party  only  desires  to  review  the 
conclusions  of  law  upon  the  facts  found,  the  case  may  con- 
sist simply  of  the  findings  of  fact,  the  conclusions  of  law 
and  the  exceptions  thereto  ;  this  may  be  called  a  "  special 
case,"  and  when  annexed  to  the  judgment  roll,  composes 
the  case  on  which  the  review  is  had. 

Case  when  and  hoiv  made.  The  case  should  be  prepared 
by  the  party  desiring  the  review  ;  the  pages  and  lines 
thereof  must  be  numbered,  and  the  copies  must  be  made 
so  as  to  correspond.^  A  copy  thereof  must  be  served  on 
the  opposite  party  within  ten  days  after  the  trial,  if  the 
trial  was  by  jury,  or  after  written  notice  of  the  filing  of 
the  decision  or  report,  if  the  trial  was  by  the  court  or  by 
referees.  It  is  irregular  to  propose,  as  an  amendment  to 
the  case,  to  substitute  an  entire  new  case,  unless  special 
leave  of  the  court  is  first  obtained.^ 

Amendments.  The  party  served  may,  within  ten  days 
thereafter,  prepare  amendments  thereto,  and  serve  a  copy 
on  the  party  proposing  the  case.^  The  amendments  pro- 
posed must  be  on  the  case  made,  or  refer  to  the  line  and 
page  where  each  is  i)roposed  to  be  inserted.* 

Notice  of  settlement.  The  party  proposing  the  case  must, 
within  four  days  after  the  amendments  were  served  on 
him,  give  notice  that  the  case,  with  the  proposed  amend- 
ments, will  be  submitted  at  a  time  and  jDlace  to  be  specified 


'  Supreme  Court,  Rule  34.  '  Supremo  Court,  Rule  34. 

'  Stuart  V.  Bsrisse,  4  Bosw.,  616,  *  Milward  v.  Hallett,  Col.  &  C.  Case,  261. 


158  ADMCnSTEATIOK  OP  CIVIL  JUSTICE. 

in  the  notice,  to  the  justice  or  referee  before  whom  the 
cause  was  tried,  for  settlement.  The  time  specified  in 
the  notice  shall  not  be  less  than  four  or  more  than  twenty 
days  after  the  service  of  such  notice.^  Before  submitting 
the  case  to  the  justice  or  referee  for  settlement,  the  party 
preparing  such  case  must  mark  upon  the  several  amend- 
ments his  proposed  allowance  or  disallowance  thereof.^ 

Settlement  of  the  case.  Upon  the  case  being  brought  before 
him,  the  justice  or  referee  must  thereupon  correct  and  settle 
the  same  as  shall  deem  to  consist  with  the  truth  of  the 
facts  f  and  he  shall  strike  out  all  the  evidence  and  other 
matters  which  shall  not  have  been  necessarily  inserted.'* 
The  judge  is  not  limited  to  the  settlement  of  the  case  by 
merely  allowing  or  disallowing  the  amendments,  but  may 
so  correct  it  as  to  make  it  conform  to  the  facts. 

The  settlement  of  the  case  is  a  judicial  act ;  so  where 
there  were  three  referees,  the  party  has  a  right  to  diemand 
that  all  shall  be  present  at  the  settlement.^  If  the  justice 
or  referee  die  before  the  case  has  been  settled,  the  court 
would  doubtless  have  the  power  to  settle  it  or  to  refer  it 
to  a  referee  who  could  hear  affidavits  and  any  other  evi- 
dence tending  to  show  what  actually  took  place  on  the  trial. 

Case,  how  ivaived  and  when  deemed  settled.  If  the  party 
shall  omit  to  make  a  case  within  the  time  above  limited, 
he  shall  be  deemed  to  have  waived  his  right  thereto  ;  and 
when  a  case  is  made  and  the  parties  shall  omit,  within  the 
several  times  limited,  the  one  party  to  propose  amend- 
ments, and  the  other  to  notifj^  an  appearance  before  the  jus- 
tice or  referee,  they  shall  respectively  be  deemed,  the  former 
to  have  agreed  to  the  case  proposed,  and  the  latter  to  have 
agreed  to  the  amendments  as  proposed.^ 

Where  it  becomes  necessary,  the  court  or  judge  may,  by 
order,  extend  the  time  in  which  any  of  the  proceedings 
mentioned  are  required  to  be  taken. 

Filing  case  and  its  effect.  The  party  making  the  case 
must  procure  the  same  to  be  filed  within  ten  days  after 
the  same  shall  be  settled,  or  it  shall  be  deemed  abandoned; 
and  in  filing  an  aflidavit  that  such  case  has  not  been  filed, 
and  showiug  the  time  of  the  settlement  thereof,  and  that 
more  than  ten  days  has  elapsed  from  the  time  of  such 
settlement,  an  order  of  course  may  be  entered,  declaring 

'  Supreme  Court,  Rule  34.  ■*  Supreme  Court,  Rule  36. 

^  Supreme  Court,  Rule  36.  "  Fielden  v.  Lahens,  14  Abb.  Pr.,  48. 

'  Supreme  Court,  Rule  34.  *  Supreme  Court,  Rule  35. 


COXTEIVIPTS  AOT)  PUNISHMENTS  AS  FOK  CONTEMPT.      159 

the  same  abandoned,  and  the  party  may  proceed  as  if  no 
case  had  been  made.^ 

After  the  case  has  been  filed  with  the  clerk,  it  becomes 
a  record  of  the  court,  and  it  may  be  taken,  in  the  further 
progress  of  the  cause,  as  iwima  facie  evidence  of  the  facts 
therein  appearing.^ 

Resettlement  of  case.  If  either  party  is  dissatisfied  with 
the  settlement  of  the  case,  he  may  move,  upon  afiidavits, 
to  have  it  resettled  ;  but  this  motion  should  be  promptly 
made  ;  it  would  be  too  late  to  move  after  the  case  has  been 
decided  by  the  general  term.^  After  the  decision  of  the 
general  term,  the  appellant  has  no  right  to  make  up  and 
serve  a  new  case ;  the  review  in  the  court  of  appeals  must 
be  had  upon  the  original  case  as  settled  ;  but  the  former 
court  has  the  power,  with  reference  to  an  appeal,  on  motion, 
to  reform  the  case  so  that  it  may  be  freed  from  such  por- 
tions of  the  evidence  as  are  unnecessary  to  j)resent  the 
questions  of  law.* 

Amendment.  An  accidental  omission  in  a  case,  or  in  the 
proceeding  to  procure  the  same  to  be  settled,  may  be  sup- 
l)lied,  if  a  proper  case  is  shown  and  the  motion  is  made  in 
due  time.^ 


CHAPTER  XL 

CONTEJIPTS   AND   PUNISH:VIENTS   AS  FOR   CONTEIVIPT. 

Every  court  has  power,  while  in  the  exercise  of  its  law- 
ful functions,  to  preserve  order,  decorum  and  silence,  as 
being  essential  to  its  existence.  The  power  to  punish  for 
contempt  of  its  oftice  and  authority  is,  therefore,  neces- 
sarily incident  to  every  court,*^  and  when  any  person, 
whether  party,  counsel,  witness,  juror,  oflicer  or  bystander, 
is  guilty  of  rude  or  contumacious  behavior,  in  the  presence 
of  the  court,  or  of  obstinancy,  perverseness,  prevarica- 


*  Supreme  Court,  Rule  37.  '  Furt  v.  Colvin.  2  Johns.,  481 ;  Hun  v. 
'  VanBergenv.  Ackles,  21  How.  Pr.,  314.         Bowne,  1  Cai.,  23. 

»  Ca«inv.  CoZe,  19  How.  Pr.,  82.  •Cow.    Treat,,    549;    1    Str.,    420;    2 

•  Johnson  v.  Whitney,  13  X.  Y.,  344.  Salk.,  697  ;  10  John.,  393. 


160  ADMINISTKATION  OF  CIVIL  JUSTICE. 

tion,  breach  of  the  peace,  or  any  willful  disturbance 
whatever,  he  is  liable  to  line  or  imprisonment,  or  both,  on 
the  instant.^ 

The  statute  undertakes  to  declare,  generally,  the  cases 
in  which  the  remedy  by  proceedings  for  contempt  may  be 
adopted.  But  it  does  not  assume  to  include  all  the  cases 
in  which  such  proceedings  may  be  had.^  It  provides 
that  every  court  of  record  shall  have  power  to  punish  as 
for  a  criminal  contempt,  persons  guilty :  1.  Of  disorderly 
contemptuous  or  insolent  behavior,  committed  during  its 
sitting,  in  immediate  view  and  presence,  and  directly 
tending  to  interrupt  its  proceedings,  or  to  impair  the 
respect  due  to  its  authority ;  2.  Any  breach  of  the  peace, 
noise  or  other  disturbance,  directly  tending  to  interrupt 
its  proceedings ;  3.  Willful  disobedience  of  any  process  or 
order  lawfully  issued  or  made  by  it ;  4.  Eesistance  will- 
fully oifered  by  any  jjerson  to  the  lawful  order  or  process 
of  the  court ;  5.  The  contumacious  and  unlawful  refusal 
of  any  person  to  be  sworn  as  a  witness  ;  and  when  sworn, 
the  like  refusal  to  answer  any  legal  and  proper  interroga- 
tory ;  6.  The  publication  of  a  false  and  grossly  inaccurate 
report  of  its  j)roceedings ;  but  no  court  can  punish  as  a 
contempt,  the  publication  of  true,  full  and  fair  reports  of 
any  trial,  argument,  proceedings  or  decision  had  in  such 
court.^ 

The  i)unishment  is  by  fine  or  imprisonment,  or  both,  in 
the  discretion  of  the  court,  the  fine  not  to  exceed  two 
hundred  and  fifty  dollars,  and  the  imprisonment  not  to 
exceed  thirty  days. 

Contempts  committed  in  the  immediate  presence  and 
view  of  the  court,  may  be  punished  summarily ;  in  other 
cases  the  party  charged,  must  be  notified  of  the  accusa- 
tion, and  have  a  reasonable  time  to  make  his  defense.^ 

Whenever  any  person  is  to  be  committed  for  any  con- 
tempt, as  above  specified,  the  particular  circumstances  of 
his  offense  must  be  set  forth  in  the  order  or  warrant  for 
commitment.  The  proceedings  for  the  punishment  of 
these  criminal  contempts  are  entirely  distinct  from  proceed- 
ings against  i)arties  or  officers,  as  for  contempt  for  the 
purpose  of  enforcing  any  civil  right  or  remedy.* 


'  Cow.  Treat.,  550;  4  Bla.  Com..  285.        '  Idem,  §  12. 
»  2  R.  S.,  278,  §  10;  2  N.  Y.  S.  at  L.,     *  Idem,  §§  13  and  14. 
288. 


CONTEMPTS  AND  PUNISHMENTS  AS  FOR  CONTEMPT.   161 

The  proceedings,  as  for  contempts,  to  enforce  civil 
rights  and  remedies,  &c.,  are  defined  by  statute'  as  follows: 
"  Every  court  of  record  shall  have  power  to  punish  by  fine 
and  imprisonment,  or  either,  any  neglect  or  violation  of 
duty,  or  any  misconduct,  by  which  the  rights  or  remedies 
of  a  party  in  a  cause  or  matter  depending  in  such  court, 
may  be  defeated,  impaired,  impeded  or  prejudiced,  all 
attorneys,  counselors,  solicitors,  clerks,  registers,  sheriffs, 
coroners,  and  all  other  persons  in  any  manner  duly  selected 
or  appointed  to  perform  any  judicial  or  ministerial  services, 
for  any  misbehavior  in  such  oflBce  or  trust,  or  for  any  will- 
ful neglect  or  violation  of  duty  therein  ;  for  disobedience 
of  any  process  of  such  court,  or  of  any  lawful  order 
thereof,  or  of  any  lawful  order  of  a  judge  of  such  court, 
or  of  any  officer,  authorized  to  perform  the  duties  of  such 
judge  ;^  also  parties  to  suits  for  putting  in  fictitious  bail 
or  sureties ;  or  for  any  deceit  or  abuse  of  the  process  or 
proceedings  of  the  court.^ 

Also  parties  to  suits,  attorney's,  counselors,  solicitors 
and  all  other  persons,  for  the  non-payment  of  any  sum  of 
money  ordered  by  such  court  to  be  paid,  in  cases  where,  by 
law,  execution  cannot  be  awarded  for  the  collection  of 
such  sum ;  and  for  other  disobedience  to  any  lawful  order, 
decree  or  process  of  such  court. 

Also,  all  persons  for  assuming  to  be  officers,  attorneys, 
solicitors  or  counselors  of  any  court,  and  acting  as  such 
without  authority ;  for  rescuing  any  property  or  person 
which  shall  be  in  the  custody  of  any  officer  by  virtue  of 
process  issued  from  such  court ;  for  unlawfully  detaining 
any  witness  or  party  to  a  suit,  while  going  to,  remaining 
at,  or  returning  from,  the  court  where  such  suit  shall  be 
noticed  for  trial ;  and  for  any  other  unlawful  interference 
with  the  process  or  proceedings  in  any  action. 

Also,  all  persons  summoned  as  witnesses,  for  refusing  or 
neglecting  to  obey  such  summons,  or  to  attend,  or  bo 
sworn,  or  answer  as  such  witness.'* 

Persons  summoned  as  jurors  in  any  court,  for  impro- 
perly conversing  with  any  party  to  a  suit  to  be  tried  at 
such  court,  or  with  any  other  i)erson  in  relation  to  the 
merits  of  such  suit;  for  receiving  communications  from 
any  such  party,  or  from  any  other  person  in  relation  to  the 

'  2  R.  S.,  534,  §  1 ;  2  N.  Y.  S.  at  L.,     '  10  Johns.,  328 ;  5  Term  Rep.,  89. 
553.     These  provisions  are  not  re-     '  2  Johns.  Gas.,  291 ;  4  Bl.  Com.,  285. 
pealed  by  the  Code ;  1  Duer,  512.       *  Col.  and  Ca.  Cas.,  121. 

U.— 21 


162  ADMINISTKATION  OF   CIVIL  JUSTICE. 

merits  of  such  suit,  for  receiving  communications  from  any 
such  party,  or  from  any  other  person  in  relation  to  the 
merits  of  any  such  suit,  without  immediately  disclosing 
the  same  to  the  court. 

Also  all  inferior  magistrates,  oflScers  and  tribunals,  for 
disobedience  of  any  lawful  order  or  process  of  a  superior 
court,  or  for  proceeding  in  any  cause,  or  matter  contrary 
to  law,  after  such  cause  or  matter  shall  have  been  removed 
j5rom  their  jurisdiction.^ 

And  all  other  cases  where  attachments  and  proceedings, 
as  for  contempts,  have  been  usually  adopted  and  practiced 
in  courts  of  record  to  enforce  the  civil  remedies  of  any  party 
to  a  suit  in  such  cornet,  or  to  protect  the  rights  of  such  party.* 

This  enumeration  of  the  general  cases  above  set  forth 
in  the  statute  include  most  of,  if  not  all,  the  cases  where 
punishments  as  for  contempts  are  proper.  The  revisers 
declared  that  the  enumeration  was  made  as  well  to  define 
as  to  limit  a  power  which,  while  necessary,  was  liable  to 
abuse;  and  that  the  jjreceding  enumeration  included  all 
cases  which  a  diligent  examination  of  all  the  writers  on 
that  subject  had  discovered,  &c.^ 

To  justifj''  a  proceeding  under  this  statute  against  a 
person  for  any  misconduct,  his  acts  must  have  been  such 
as  tended  to  defeat,  impair,  impede  or  prejudice  the  rights 
or  remedies  of  a  party  in  a  cause  then  depending  in  court,* 
because  "an  obvious  distinction  exists  between  contempts, 
strictly  such,  and  those  offenses  which  go  by  that  name, 
but  which  are  punished  as  contempts  only  for  the  purpose 
of  enforcing  some  civil  remedy."^  Where  the  offense  is 
one  which  may  be  punished  as  a  criminal  contempt,  the 
punishment  may  be  inflicted  irrespective  of  the  considera- 
tion of  any  injury  done  to  a  party  to  the  action  in  which 
the  process  was  issued  or  the  order  made ;  and  such  acts 
are  indictable  as  misdemeanors.^ 

Where  the  misconduct  for  which  the  person  is  proceeded 
against,  as  for  a  contempt,  is  such  that,  in  its  nature,  it  is 
a  criminal  contempt,  the  authority  of  the  court  is  not 
limited  to  the  imposition  of  a  fine  sufiicient  to  indemnify 
the  party  aggrieved,  or  to  an  imprisonment  of  the  accused 
for  the  sole  purpose  of  enforcing  the  payment  of  the  fine.' 

>  3  Johns.  Cas.,  568.  *  1  Diier,  516;  2  R.  S.,  534,  §  1. 

»  2   R.  S.,  534,  §  1 ;  2  N.  Y.  S.  at  L.,  '  See  Reviser's  Notes  to  title  2  of  ch.  3 

553.  of  part  3  of  Revised  Statutes. 

»  See  Reviser's  Notes;  5  N.  Y.  S.  at  L.,  '  2  R.  S.,  692,  §  14. 

502.  ■*  1  Duer,  512. 


CONTEMPTS  A^TD  PUNISHMENTS  AS  FOK  CONTEMPT.    163 

But  the  court  may  proceed  further  and  punish  the  accused 
as  being  guilty  of  a  criminal  contem])t.' 

Where  the  proceeding  is  as  for  a  contempt  for  the  pur- 
pose of  enforcing  a  civil  remedy,  the  cause  for  such  pro- 
ceeding will  usually  be  found  among  those  enumerated  in 
the  statute,^  among  which  are  contempts  in  not  paying- 
money  ordered  to  be  paid,  where,  by  law,  an  execution 
cannot  be  awarded  for  its  collection.^  Where  the  disobe- 
dience is  for  non-x)ayment  of  costs,  it  is  confined  to  attor- 
neys, solicitors,  counselors  and  officers  of  court  ordered  to 
pay  costs  for  misconduct  as  such,  and  to  witnesses  ordered 
to  pay  costs  on  attachment  for  non-attendance/ 

In  such  cases  where  the  order  for  payment  of  money  has 
been  made,  and  the  accused  has  disregarded  it,  the  party 
seeking  to  enforce  the  order  makes  proof,  by  affidavit,  that 
a  personal  demand  of  such  payment  has  been  made  upon 
the  accused,  and  that  he  has  refused  to  pay  it,^  and  if  the 
person  demanding  payment  under  the  order  is  not  the  party 
to  whom  the  money  was  directed  to  be  paid,  then  such 
person  should  show  that  he  was  authorized  to  receive  it  f 
and  upon  such  proof  being  made,  the  court  will  issue  its 
warrant  to  commit  the  person  so  disobeying,  to  prison, 
until  such  sum  and  the  costs  and  expenses  of  the  xn'oceed- 
ing  are  paidJ  Where  the  order  is  for  the  payment  of 
money,  it  should  specify  the  time  within  which  the  money 
is  to  be  paid,"  although  it  is  not  necessary  that  the  amount 
to  be  paid  should  be  named  in  the  order.^ 

So,  also,  persons  may  be  i)unished  as  for  contempt  for 
disobedience  to  any  lawful  order,  decree  or  process  of  the 
court.^"  Thus,  it  is  a  contempt  to  disregard  an  order  of 
injunction  granted  in  a  case  in  which  the  court  has  juris- 
diction.^^ And  the  party  thus  enjoined  must  not  only 
desist  from  further  proceedings  in  the  premises,  but  must 
direct  all  under  his  control,  also  to  desist,  such  as  servants, 
officers  of  court,  &c.^^  So  confessing  a  judgment  with  a 
view  of  defeating  the  remedy  of  the  plaintiff  in  a  credi- 


>  1  Duer,  512.  *  2  Barb.  Ch.,  272. 

'2  R.  S.,  534,  §  1.  M  Hill,  154. 

'  Idem,  subd.  3.  »»  2  R.  S.,  535,  §  1,  subd.  3;  2  N.  T.  S. 

*  L.  1847,  491.  at  L.,  553. 

*  2  R.  S.,  535,  §  4;  2  N.  Y.  S.  at  L.,  "  1  Duer,  512:    2   Paige,   326;  4  Id., 

554,  §  4;  9  Paige.  609.  444;  9  N.  Y.,  263. 

*  2  Barb.  Ch.,  272.  "  5  Abb.,  244;  15  How.,  81. 
»  2  R.  S.,  535,  §  4 ;  2  N.  Y.  S.  at  L., 

554,  §  4;  1  Hill,  168;  9  Paige,  609. 


164  ADMINISTRATION  OP  CIVIL  JUSTICE. 

tor's  suit,  and  interposing  delays  so  as  to  secure  the  prior 
appointment  of  a  receiver  in  a  proceeding  upon  the  con- 
fessed judgment,  are  a  violation  of  the  injunction  in  the 
creditor's  suit.^  The  mere  confession  of  the  judgment 
might  not,  of  itself,  be  a  violation  of  the  injunction,  but 
any  active  interference  with  the  property  of  the  defendant, 
such  as  procuring  an  execution  to  be  issued  thereon,  or 
taking  the  property  to  the  sheriff,  would  be.^  Where  a 
confession  is  collusive,  with  a  view  to  evade  the  injunction 
and  defeat  the  object  of  the  suit  in  which  it  was  granted, 
it  might,  of  itself,  become  a  violation  of  the  injunction.^ 

But  merely  carrying  into  effect  a  previous  agreement  is 
not  a  violation  of  an  injunction ;  as,  where  an  officer  having 
unaudited  claims  against  a  county,  assigned  specific  por- 
tions to  various  persons  in  payment  of  debts,  agreeing  to 
give  orders  in  favor  of  the  assignees,  and  was  afterwards 
served  with  an  injunction  in  a  creditor's  suit;  and,  subse- 
quently, when  the  claims  were  audited,  requested  the 
supervisors  to  issue  orders  in  pursuance  of  his  previous 
assignments ;  this  was  held  to  be  no  violation  of  the  in- 
junction.* So,  likewise,  a  debtor  proceeding  to  judgment 
in  a  suit  commenced  before  the  injunction  was  served  upon 
him  is  not  guilty  of  such  a  breach  of  the  injunction  as 
will  render  him  liable  to  be  punished  as  for  a  contempt.^ 

A  person  to  whom  a  writ  of  habeas  corpus  is  directed, 
will  be  guilty  as  for  a  contempt,  if  he  make  an  evasive  or 
insufficient  return  thereon,  as  denying  the  custody  of  the 
body  while  the  person  is  in  the  charge  of  a  subordinate 
officer  acting  under  his  authority.^ 

It  is  likewise  a  contempt  of  the  authority  of  the  court 
to  take  measures  to  defeat  its  process ;  as,  where  a  plain- 
tiff, learning  that  the  defendant  had  subpenaed  a  witness 
to  bring  certain  papers,  obtained  possession  of  them  in 
order  to  defeat  such  subpoena,  and  neglected  to  produce, 
them  on  trial,  in  pursuance  of  the  notice  of  the  defendant, 
etc.,  he  was  held  to  be  guilty  of  contempt,  and  might  be 
punished  as  for  the  same."^ 

So  also,  it  is  a  contempt  to  sue  a  ward  of  court  without 
authority  from  the  court  for  that  purpose.  So,  likewise, 
it  is  a  contempt  to  sue  a  lunatic  without  permission,  after 


»  Ross  V.  Classman,  3  Sandf.,  676.  *  10  Paige,  485. 

'  7  Paige,  364.  •  10  Johns.,  328. 

•4  Paige,  378.  *  8  How.,  226. 
*  9  Paige,  243 ;  see  also,  3  How.,  244. 


CONTEMPTS  AND  PUNISHMENTS  AS  FOR  CONTEMPT.  165 

notice  of  inquisition.^  So  the  issuing  of  an  execution 
against  the  estate  of  a  hmatic  without  permission,  after 
the  appointment  of  a  committee,  will  be  punished  as  for  a 
contempt.^  So  where  a  receiver  or  other  custodian,  who 
represents  the  court,  has  the  rightful  possession  of  j)ro- 
perty,  any  one  attempting  to  interfere  therewith,  as  by 
execution,  distress  for  rent,  or  the  like,  will  be  deemed 
guilty  of  contemiit.^ 

An  examination  of  the  statute,  and  also  of  the  books, 
will  show  that  there  is  a  very  great  number  and  variety  of 
acts,  omissions  and  negligences  of  parties,  officers  of  coiu'ts, 
witnesses,  &c.,  which  may  be  punished  as  for  contempt, 
for  the  purpose  of  enforcing  civil  remedies  and  securing 
the  ends  of  justice.  The  general  declaration  of  the  statute 
is,  that  every  court  of  record  may  punish  by  fine  and  im- 
prisonment, or  either,  any  neglect  or  violation  of  duty,  or 
any  misconduct  hy  which  the  rights  or  remedies  of  aimrty  in 
a  cause  or  matter  depending  in  such  court,  may  he  defeated, 
impaired,  impeded  or  prejudiced,  a  list  of  cases,  seemingly 
broad  enough  to  embrace  all  cases  which  could  probably 
arise.* 

The  manner  of  proceeding  against  a  person  as  for  a  contempt. 

Before  proceeding  against  a  party,  as  for  a  contempt,  it 
becomes  necessary  to  determine  where  such  a  proceeding 
is  proper  in  any  given  case.  If  the  supposed  contempt  be 
for  the  disobedience  of  an  order  of  the  court  or  judge,  it  is 
necessary  to  bring  home  to  the  accused  a  knowledge  of  the 
existence  of  such  order.  This  is  usually  done  by  serving 
upon  the  accused,  personally,  a  copy  of  such  order.  In 
such  cases  it  is  the  disobedience  of  the  order  of  the  court 
which  constitutes  the  contempt,  and,  therefore,  although 
the  court  requires  of  the  party  availing  himself  of  its  order, 
a  substantial  compliance  with  its  rules  and  practice  upon 
that  subject,  it  will  not  allow  the  effect  of  its  orders  to  be 
lost,  where  the  party  sought  to  be  bound  thereby,  had 
actual  knowledge  or  notice  of  its  existence.'^  It  has,  there- 
fore, been  held,  that  personal  service  of  the  order  upon  the 
accused  is  not  always  necessary  to  charge  him  with  know- 
ledge of  its  existence.®    He  may  have  been  in  court  w^hen 

•  2  Paige,  422;  3  Id.,  199.  •  9  N.  Y.,  263,   278;  6  Abb.,   251;  4 
»  6  Paige,  489.  Myl.  &  Cr.,  498. 

'  7  Paige,  573 ;  9  Id.,  372.  •  4  Paige,  405. 

*  See  2  R.  S.,  534,  §  p      . 


166  ADMENISTBATION  OF  CIYIL  JUSTICE. 

the  order  was  made/  or  he  may  have  been  informed  thereof 
by  a  person  who  was  i^resent  at  the  time.^ 

As  a  general  rule,  it  would  be  proper  to  hold  the  party 
as  bound  by  any  such  informal  notice,  where  it  is  evident 
that  he  had  attempted  to  take  advantage  of  want  of  per- 
sonal service  as  an  excuse  for  disregarding  such  order. 
But  if  the  case  were  one  wh^e  the  obligation  to  act  or  not, 
depended  not  only  on  the  existence  of  the  order,  but  also 
upon  its  being  served  in  a  particular  manner,  then  it  would 
be  proper  not  to  hold  the  party  guilty  of  disobedience  for 
not  observing  such  order  until  he  had  been  shown  the 
original  and  also  served  with  a  copy  of  the  same.^  An 
injunction  order  may  be  served  by  copy,  without  an  exhi- 
bition of  the  original.* 

By  this  statute,  only  courts  of  record  are  authorized  to 
institute  proceedings,  as  for  a  contempt,  to  enforce  civil 
remedies  and  protect  the  rights  of  parties  in  civil  x>roceed- 
ings.^  But  other  statutes  have  conferred  a  similar  juris- 
diction upon  certain  other  courts,  not  of  record.  Thus, 
upon  the  surrogate's  court,^  also  upon  a  judge  in  summary 
proceedings,  as  well  as  upon  the  court  of  which  he  is  judge,^ 
and  the  application  to  punish  the  party  for  a  contempt, 
must  be  made  to  the  court  in  which  the  cause  or  matter 
prejudiced  by  such  disobedience  was  depending.*  If  the 
misbehavior  or  disobedience  be  at  the  circuit,  the  applica- 
tion is  made  in  the  supreme  court.^  If  before  a  referee, 
the  application  is  to  the  judge  making  the  order,  or  ap- 
pointing the  referee,^"  or  it  may  be  made  to  the  court." 
A  referee  has  likewise  authority,  the  same  as  the  court,  to 
preserve  order  and  punish  all  violations  thereof  upon  trials 
before  him,  and  to  compel  the  attendance  of  witnesses, 
and  to  punish  them  as  for  contempt  for  non-attendance  or 
refusal  to  be  sworn  or  testify.^* 

AVhen  the  contempt  charged  consists  in  disobedience  to 
an  order  made  by  a  judge  or  referee  in  supplementary  pro- 
ceedings, the  application  is  to  the  judge  making  the  order 


'  2  Barb.  Ch.  R.,  275;  12  Yes.,  202.  ''  Code,  §  302  ;  13  How.,  331. 

«  3  Edw.  Ch.,  236.  »  2  R.  S.,  534,  §  1. 

'  3  Duer,  554.  '  Idem,  539,  §  33. 

*  5  Abb.,  244.  "  Code,  §  302. 

»  2  R.  S.,  534,  §  1 ;  2  N.  T.  S.  at  L.,  553.  »  13  How.,  331 ;  6  Abb.,  217,  note. 

•  2  R.  S.,  22],  §§  6  &  9:  L.  1837,  p.  "  Code,  §  272. 

535,  §  67;  10  Barb.,  524;  11  N. 
Y.,  324. 


CONTEMPTS  AOT)  PUNISHMENTS  AS  FOR  CONTEMPT.      167 

or  appointing  the  referee  ;^  but  it  has  been  held  that  the 
court  also  may  entertain  jurisdiction  to  punish  disobedience 
to  the  judge's  order  in  such  case  ;  but  upon  a  full  view  of 
the  subject,  such  authority  may  be  doubted. 

The  person  aggrieved  makes  application  to  the  proper 
authority  for  the  proceedings  to  be  instituted,  where  the 
misconduct,  &c.,  was  not  committed  in  the  immediate  x^re- 
sence  of  the  court ;  and  such  application  is  based  upon 
aflSdavits  setting  out  the  necessary  facts  which  constitute 
the  neglect  or  violation  of  duty  complained  of;  and  the 
affidavits  must  be  such  as  to  satisfy  the  court  of  the  facts 
charged,  and  that  a  sufficient  cause  exists  for  instituting 
such  i^roceedings ;  a  copy  of  which  affidavits  must  be 
served  on  the  party  accused  a  reasonable  time  before  he  is 
called  upon  to  make  his  defense ;  except  in  cases  where 
the  disobedience  is  to  a  rule  or  order  requiring  the  pay- 
ment of  money,  or  disobedience  of  a  subpoena.^ 

There  are  two  methods  of  proceeding  on  the  application 
of  the  aggrieved  party  against  a  part j'  as  for  a  contempt  to 
enforce  civil  remedies — except  in  cases  for  the  nonpajment 
of  monej^ — one  by  attachment  to  bring  the  party  into 
court  to  answer  the  alleged  contempt,  or  by  an  order  for 
the  accused  to  show  cause  why  he  should  not  be  punished 
for  his  alleged  misconduct.^ 

When  the  proceeding  is  by  attachment,  copies  of  the 
affidavits  and  other  legal  evidence  showing  the  party  to 
be  in  contempt,  must  be  served  upon  the  party  accused  a 
reasonable  time  before  he  is  required  to  make  his  defense ; 
and  they  may  be  served  simultaneously  with  the  attach- 
ment.* 

The  order  for  the  attachment  merely  directs  that  an 
attachment  be  issued,  it  appearing  to  the  court  that  there 
is  probable  cause  for  issuing  the  same,  and  directs  the 
amount  of  the  penalty  in  which  the  defendant  may  give 
bond  for  his  appearance  to  answer.^ 

The  proceedings  in  these  cases,  including  the  affidavits, 
attachment,  &c.,  are  entitled  in  the  original  cause  f  the 
attachment  is  directed  to  the  sherift'  of  the  county,  or 
the  coroner,  as  the  case  may  be,  and  made  returnable  at 
a  special  term ;   and  tested,  signed  and  sealed  like  the 


'  See  Code.  §  302  ;   13  How.,  174.  *  2  Sandf.,  T28. 

'  2  R.  S.,  535,  §  3  ;   2  N.  Y.  S.  at  L.,  554.  '  2  R.  S.,   53G,  §  10  ;    2  N.  Y.  S.  at  L, 
■  »  9  Paige,  372;  2  Sandf.,  724;   2  R.  S.,  555,  §  10. 

635,  §  5.  •  4  Paige,  3G0 ;   1  Barb.,  227. 


168  ADMINISTEATION  OF  CIVIL  JUSTICE. 

ordinary  process  of  the  coiirt.^  On  the  attachment  should 
be  indorsed,  by  the  clerk,  the  amount  in  which  to  hold 
to  bail,  and  also,  that  it  is  issued  by  the  special  order  of  the 
court.^ 

Upon  arresting  the  defendant  upon  such  attachment  to 
answer  for  any  alleged  misconduct,  the  sheriff  must  keep 
him  in  his  actual  custody,  and  bring  him  personally  before 
the  court  issuing  the  attachment ;  and  must  thus  detain 
him  in  his  custody  until  the  court  make  some  order  in  the 
premises,  unless  the  defendant  entitles  himself  to  a  dis- 
charge by  giving  bail  as  prescribed  by  statute  f  and  if  no 
sum  be  specified  in  which  to  take  bail  of  the  defendant, 
where  the  attachment  is  issued  by  special  order  of  the 
court,  then  he  will  not  be  entitled  to  discharge  by  gi^ing 
bail.*  In  such  cases  he  can  be  discharged  only  by  special 
order.* 

In  cases  where  the  party  is  entitled  to  an  attachment 
without  a  special  order  of  the  court,  if  he  wish  the  defend- 
ant held  to  bail,  he  must  make  application  to  a  judge  of 
court,  or  to  some  officer  authorized  to  perform  the  duties 
of  such  judge,  to  direct  the  penalty  in  which  the  defendant 
shall  give  bonds  for  his  appearance  to  answer  the  matter 
alleged  against  him ;  and  upon  due  proof  of  the  facts  and 
circumstances,  such  officer  shall  direct  the  amount  to  be 
required  which  shall  be  indorsed  on  such  attachment.' 
And  no  such  sum  being  thus  indorsed  thereon,  the  defend- 
ant may  be  discharged  by  giving  bond  in  the  penalty  of 
one  hundred  dollars,  with  sureties,  as  prescribed  by  statute.® 

A  special  order  of  the  court,  or  a  special  application 
thereto  for  such  order,  is  not  necessary  to  the  issuing  of 
an  attachment  against  an  officer  or  person  for  disobedience 
of  a  rule  entered  in  such  court  according  to  the  practice 
thereof,  requiring  such  officer  or  person  to  return  a  process 
of  the  court  directed  and  delivered  to  him."^ 

At  any  time  after  the  day  when  it  is  the  duty  of  the 
sheriff  or  other  officer  to  return,  deliver  or  file  any  process, 
undertaking,  order  or  other  paper  according  to  the  provi- 
sions of  the  Code,  any  party  entitled  to  have  such  act 
done  may  serve  on  such  officer  a  notice  to  return,  deliver 


'  Rule  40,  S.  C,  1858;  15  How.,  494.  '  Idem,  §  11. 

•  2  R.  S.,  536,  §  14.  •  Idem,  %  15;  21  Wend.,  57. 

»  2  R.  S.,  537,  §§  12,  13 ;  2  N.  Y.  S.  at  ^2  R.  S.,  536,  §  6;  2  N.  Y.  S.  at  L., 
L.,  555.  554. 

♦  Idem,  §  14. 


I 


CONTEMPTS  AKD  PUPriSHMENTS  AS  FOR  CONTEMPT.    169 

or  file  such  process,  order,  undertaking  or  other  paper 
within  ten  daj^s,  or  show  cause  at  a  special  term  to  be  desig- 
nated in  said  notice,  why  an  attachment  should  not  issue 
against  him  ;^  also,  in  other  proceedings  than  those  relating 
to  actions  under  the  Code,  the  party  interested  may  serve 
a  notice  as  above  at  any  time  before  the  retm^n  day  of  the 
writ,  requiring  the  officer  to  return  the  same  within  twenty 
days  after  the  service  of  such  notice,  and  if  the  same  be 
not  so  returned,  upon  filing  in  the  office  of  the  clerk  of  the 
county  in  which  the  writ  is  returnable,  an  affidavit  of 
the  service  of  such  notice,  and  of  the  delivery  of  the 
writ,  the  officer's  default  may  be  entered  and  an  attachment 
be  issued,  of  course.^ 

In  case  the  defendant  should  be  in  custody  of  any  officer 
by  virtue  of  an  execution  against  his  body,  or  by  virtue 
of  any  process  for  other  contempts  or  misconduct,  any 
judge  of  the  coiu-t,  or  any  officer  authorized  to  perform 
the  duties  of  such  judge  in  vacation,  may  award  a  writ 
of  habeas  cor]nis  to  bring  up  such  defendant  before  the 
proper  court  or  officer.^ 

Upon  returning  any  attachment,  the  officer  executing 
the  same  must  return  also  the  bond  of  the  defendant,  if 
any  is  taken  by  him,  which  bond  must  be  filed  with  the 
attachment.  And  the  sheriff  or  other  officer  to  whom 
any  attachment  is  directed,  must  return  the  same  by  the 
return  day  specified  therein,  without  any  previous  rule  or 
order  for  that  purpose ;  and  if  he  fail  to  do  so,  an  attach- 
ment may  issue  against  him  of  course,  upon  being 
allowed  by  a  judge  of  the  court,  or  by  some  officer 
authorized  to  perform  the  duties  of  such  judge,  upon 
proof  of  such  default.* 

The  defendant  having  been  arrested  and  brought  before 
the  court,  or  having  appeared  therein,  and  denied  the 
alleged  misconduct,  the  court  must  require  interroga- 
tories to  be  filed,  specifying  the  facts  and  circumstances 
alleged  against  the  defendant,  and  requiring  his  answer 
on  oath,  within  such  reasonable  time  as  the  court  may 
allow.  The  court  irhj  also  receive  other  affidavits  and 
proofs  contradictory  of  the  answer  of  the  defendant,  or 


»  Supreme  Court,  Rule  8,  1858.  '  2  R.  S.,  536,  §  8;  2  N.  Y.  3.  at  L., 

»  Supreme  Court,  Rule  13,  1847.  555. 

*  2  R.  S.,  337,  §§  16  and  17;  see  23  Wend.,  102;  1  Paige,  435;  note.  When 
the  attachment  is  not  received  by  the  sheriff  in  time  to  serve,  and  return  it  at  the 
time  and  place  specified,  ho  should  return  it  without  service,  see  4  Paige,  3G0. 

n.— 22 


170  ADMrNISTEATION  OF  CIYIL  JUSTICE. 

in  confirmation  thereof,  and  upon  all  the  affidavits  and, 
papers  thus  produced,  including  the  original  ones,  it  shall 
be  determined  whether  the  defendant  has  been  guilty  of 
the  alleged  misconduct,  &c.^ 

The  defendant  having  been  arrested  and  discharged  on 
giving  bonds,  under  the  statute,  to  appear  and  answer  at 
the  time  and  place  specified  therein,  must  appear  on  the 
return  day ,  and  if  he  fails  to  do  so,  the  court  may  either 
award  a  second  attachment,  or  order  the  bond,  given  for 
his  appearance,  to  be  prosecuted,  or  both  proceedings  may 
be  had.^  And  when  the  bond  is  ordered  to  be  prosecuted, 
the  order  should  specify  the  name  of  the  party  aggrieved, 
authorizing  him  to  prosecute  the  same  ;^  and  when  there 
is  no  aggrieved  party,  then  the  order  should  direct  the 
attorney-general,  or  the  district  attorney  of  the  county,  in 
which  the  bond  was  taken,  to  prosecute  the  same,  in  the 
name  of  the  officer  who  took  the  bond.* 

When  the  court  orders  the  party  aggrieved  to  prosecute 
such  bond,  such  order  operates  as  an  assignment  of  the 
same,  and  the  aggrieved  party  can  maintain  an  action  in 
his  own  name  thereon,  as  the  assignee  of  the  sheriff  or 
other  officer  taking  such  bond.^  When  the  suit  is  prose- 
cuted by  the  attorney-general,  &c.,  the  whole  of  the  bond 
is  recoverable  ;  and  the  court  will  make  such  disposition 
of  the  money  collected  thereon  as  is  required  to  pay  the 
costs  of  the  proceedings  in  attachment,  &c.,  and  satisfy 
any  injury  the  prosecuting  party  may  have  sustained ;  and 
the  residue,  if  any,  must  be  paid  into  the  treasury  of  the 
state.^  Under  the  authority  to  impose  a  fine  sufficient 
to  indemnify  the  party  aggrieved,  and  to  satisfy  his  costs 
and  expenses,  a  reasonable  counsel  fee  may  be  allowed  as 
a  part  of  his  expenses.'^ 

Order  to  show  cause. 

In  instituting  proceeding  against  a  person  as  for  con- 
tempt, the  usual  method  is  to  apply  for  an  order  that  the 
party  accused  show  cause  why  he  should  not  be  proceeded 
against  as  for  a  contempt,  which  application,  like  that  for 
an  attachment,  is  founded  upon  an  affidavit  showing  the 


'  Idem,  §  19;  11  N.  Y.,  69.  »  Idem,  §§  27,  28. 

*  2  R.  S.,  §  27.  "2  R.  S.,  539,  §  31. 
» Idem,  §  28.  '4  Duer,  148. 

*  Idem,  §  30. 


CONTEMPTS  AND  PUNISHMENTS  AS  FOE  CONTEMPT.    171 

misconduct  alleged,^  and  it  is  brought  on,  like  other  motions 
of  the  like  character.  In  such  cases,  the  order  to  show 
cause,  together  with  copies  of  the  affidavits  and  other 
papers  used  to  obtain  the  same,  must  be  served  upon  the 
accused  party  a  reasonable  time  before  the  time  for  hear- 
ing, which  must  be  specified  in  such  order.^  The  service 
should  be  personal  upon  the  party,  unless  such  service  is 
positively  dispensed  with  on  special  grounds. 

If  the  defendant  appear  at  the  time  specified  in  the  order 
and  deny  under  oath  the  alleged  misconduct,  the  order  to 
show  cause  may  be  discharged,  or  the  court  or  judge  may 
allow  interrogatories  to  be  tiled ;  and  it  may  direct  a  refer- 
ence to  take  the  answers  of  the  accused  to  such  interro- 
gatories, and  take  such  other  proofs  as  either  party  may 
wish  to  submit,  and  report  the  same  to  the  court.  Upon 
which  aflSdavits — including  the  original  affidavits  and 
proofs — the  court  or  judge,  as  the  case  may  be,  determines 
the  guilt  or  innocence  of  the  accused.^ 

If  the  defendant  does  not  appear  at  the  time  appointed, 
or  at  such  other  times  as  may  be  designated  for  the  hear- 
ing of  the  cause,  or,  if  appearing,  he  does  not  deny  the 
alleged  misconduct,  the  court  may  at  once  proceed  to  a 
final  determination  of  the  matter. 

Of  the  filing  of  inter)' og atones. 

In  general,  where  the  party  accused  has  been  brought 
into  court  on  attachment  in  these  proceedings,  or  where 
he  appears  therein  and  denies  the  allegations  of  miscon- 
duct, &c.,  charged  upon  him,  it  is  necessary  that  interroga- 
tories should  be  filed  for  him  to  answer  respecting  the  same. 
These  interrogatories  should  be  confined  to  the  subject- 
matter  of  the  misconduct  alleged,  and  should  not  extend  to 
other  proceedings.*  Where  they  are  improper,  the  defend- 
ant may  except  to  them  as  where  they  relate  to  other 
alleged  contempts  than  that  for  which  he  is  attached.*  If 
defective,  they  may  be  amended,  when  necessary,  for  the 
purpose  of  obtaining  full  answers  to  matters  already  stated.* 

They  should  be  filed — when  the  attachment  is  returna- 
ble at  special  term  of  the  supreme  court — within  two 
days  from  the  retimi,^  and  a  copy  should  be  served  upon 


'  See  2  R.  S.,  535,  §  3,  also  §  5;  2  N.     *  1  Barb.,  228;  9  Paige,  376. 
Y.  S.  at  L.,  554.  "  6  Cow.,  41 ;  i  Johns.,  31. 

*  Idem,  §  6.  'IS  How.,  494. 

*  See  9  Paige,  375;  4  How.,  369. 


172  ADMINISTRATION  OP  CIVIL  JUSTICE. 

the  defendant.^  Where  there  is  no  special  rule  on  the 
subject,  the  interrogatories  should  be  filed  within  a 
reasonable  time,  or  the  defendant  may  move  to  be  dis- 
charged out  of  custody ;  but  such  interrogatories  may  be 
filed  at  any  time  before  such  motion  is  made.^  Under  the 
former  practice,  the  interrogatories  were  to  be  filed  within 
four  days  after  the  return  of  the  attachment,  and  the 
defendant  either  remained  in  custody  or  put  in  bail  for  his 
appearance  to  answer,  or  he  was  recognized  from  day  to 
day.^  The  sheriff  was  required  to  take  him  before  a  judge 
who  exercised  a  sound  discretion  under  the  circumstances, 
whether  to  let  the  defendant  to  bail  at  all,  and  upon  what 
terms.* 

The  interrogatories  being  filed  the  defendant  must  an- 
swer them,  so  far,  at  least,  as  they  are  material  to  show 
the  misconduct  alleged,  or  the  true  nature  and  character 
of  the  misconduct  as  the  quo  animo  of  the  accused.^  The 
order  directing  the  filing  of  the  interrogatories  will  fix  the 
time  within  which  they  are  to  be  answered  by  the  defend- 
ant, and  the  manner  in  which  they  are  to  be  answered,  as 
that  the  defendant  put  in  written  answers  thereto,  upon 
oath,  and  file  the  same  within  twenty-four  hours.''  The 
party  i)rosecuting  these  proceedings  should  see  that  all 
these  matters  are  settled  in  the  order,  and  that  the  defend- 
ant is  duly  served  with  the  same. 

If  the  defendant  neglects  or  refuses  to  answer  the  inter- 
rogatories under  oath,  he  subjects  himself  to  further 
punishment;  as  being  out  on  bail,  another  attachment 
may  be  awarded  against  him,  or  being  before  the  court, 
he  may  be  recommitted  and  the  bond  taken  on  his  arrest 
may  be  ordered  to  be  prosecuted.^  If  he  answers  within 
the  time  and  files  the  same,  the  court  then  may  proceed 
at  once  to  determine  whether  the  defendant  is  guilty  of 
the  alleged  misconduct,  or  it  may  look  into  other  afiidavits 
and  proofs  which  either  party  may  produce.^ 

The  court  likewise  may,  in  its  discretion,  order  a  reference 
to  some  proper  person,  to  take  the  answers  of  the  defendant 
to  the  interrogatories  ;  and  also  to  report  such  other  evi- 
dence as  either  party  may  desire  to  produce  before  him  in 


*  2  Paige,  103.  »  1  Duer,  512. 
»  1  Gr.  Pr.,  696;  2  Wend.,  617.  *  2  Paige,  103. 

»  1  Johns.  Cas.,  31 ;  3  Cow.,  341.  '  2  R.  S.,  537,  §  13 ;  see  alao  §  27. 

♦  3  Cow.,  341.  *  Idem,  §  19. 


CONTEMPTS  AND  PUNISHMENTS  AS  FOR  CONTEMPT.     173 

respect  to  the  alleged  misconduct.^  During  these  examina- 
tions, ex  parte  affidavits  of  witnesses  will  not,  in  general,  be 
received,  but  the  witnesses  should  be  produced  and  exam- 
ined before  the  referee,  that  they  may  be  cross-examined.* 
The  answers  of  the  defendant  to  the  interrogatories  must 
not  be  evasive  ;  if  they  are  insufficient,  the  court  will  send 
them  back  to  be  made  more  definite.^  The  referee  must 
report  the  proofs  and  answers  taken,  to  the  court,  and  not 
his  mere  opinions.* 

The  amount  of  the  relator's  loss  may  also  be  ascertained, 
by  reference  for  that  purpose ;  but  it  would  be  improper  to 
unite  the  inquiry  as  to  his  damages,  with  that  in  relation 
to  the  misconduct  charged.^ 

The  defendant  being  found  guilty  of  the  alleged  mis- 
conduct, the  statute  requires  the  court  to  determine  whether 
it  was  calculated  to,  and  actually  did,  defeat,  impair,  impede 
or  prejudice  the  rights  or  remedies  of  any  party,  iu  a  cause 
or  matter  depending  in  such  court,  and  in  such  case  to  pro- 
ceed to  impose  a  fine,  or  to  imprison  the  defendant,  or 
both,  as  the  nature  of  the  case  might  require.^  The  statute, 
however,  confers  upon  the  court  the  discretionary  power — 
in  case  of  the  inability  of  the  defendant  to  perform  the 
requirements  imposed — to  relieve  him  in  such  manner 
and  upon  such  terms  as  they  should  deem  just  and  proper.^ 

The  fine  required  to  be  imposed  must  be  sufficient  to 
indemnify  ia  party  who  has  sustained  an  actual  loss  or 
injury  by  the  alleged  misconduct,  and  also  to  satisfy  his 
costs  and  expenses  ;  and  such  amount  must  be  paid  over  to 
such  party,  on  the  order  of  the  court,  which,  if  accepted, 
becomes  a  bar  to  any  further  action  against  the  defendant 
by  such  aggrieved  party,  to  recover  damages  for  such 
injury.'  The  actual  losses  intended  by  the  statute  are 
those  which  are  pecuniary  in  their  character  and  are  capa- 
ble of  being  estimated  with  reasonable  certainty.^  In 
other  cases,  the  fine  cannot  exceed  two  hundred  and  fifty 
dollars  over  and  above  the  costs  and  expenses  of  the 
proceedings  f  and  where  the  misconduct  complained  of 


•TPaifce,  372;   2  Barb.  Ch.  Pr.,  277,           amending  same ;    2  N.  T.  S.  at  L., 

and  note;  8  How.,  61.  566. 

*  7  Paif^e,  60H.  ''  Idem,  §  21 ;  7  PaiRe,  364 ;  1  Duer,  513. 
»2  Barb.  Gh.  Pr.,  277.  "  1  Duer,   512;    4  Paige,  164,  456;    7 

♦  7  Paige,  372.  Paige,   364;    2  Donio,  570;   11  N. 

•  2  Barb.  Ch.  Pr.,  279.  Y.,  62. 

•  2  R.  S.,  538,  §  20 ;  Laws  1843,  ch.  9,     » Idem,  §  22. 


174  ADMmiSTRATION  OF  CIYIL  JUSTICE. 

consists  in  the  omission  to  perform  some  act  or  duty  yet  in 
the  power  of  the  defendant  to  perform,  the  court  must 
imprison  him  until  the  same  is  performed,  and  until  he  shall 
have  paid  the  fine  imposed,  and  the  costs  and  expenses  of 
the  proceedings,^  in  wliich  case  the  order  and  process  of  com- 
mitment must  specify  the  act  or  duty  to  be  performed,  and 
the  amount  of  fine  and  expense  to  be  paid.^  In  all  other 
cases,  where  there  is  no  special  provision,  if  imprisonment 
be  ordered,  it  must  be  for  some  reasonable  time,  not  exceed- 
ing six  months,  and  until  the  expenses  of  the  proceeding 
are  paid,  and  in  case  of  a  fine,  until  it  be  paid  ;  and  the 
duration  of  the  imprisonment  must  be  expressed  in  the  order 
and  process  of  commitment.^ 

If  it  shall  be  found  that  the  misconduct  complained  of 
was  willful  on  the  part  of  the  accused,  the  court  will  pro- 
ceed to  punish  the  defendant  by  fine  and  imprisonment, 
independent  of  any  loss  or  injury  on  the  i)art  of  the 
relator.  For  the  misconduct  being  willful,  the  defendant 
is  guilty  of  a  criminal  contempt,  and  is  liable  to  be 
punished  criminally  as  well  as  civilly.  A  willful  contempt 
also  constitutes  an  indictable  offense.* 

Suit  on  bond. 

When  the  defendant  has  been  duly  served  in  attach- 
ment, and  has  given  bond  to  appear  and  answer,  and  does 
not  appear,  the  court  may  order  the  bond  taken  on  the 
arrest  to  be  prosecuted,^  and  such  order  operates  as  an 
assignment  of  the  bond  to  the  aggrieved  party,  who  is 
authorized  to  maintain  an  action  thereon  in  his  own 
name,  &c.^ 

The  complaint  in  such  action  should  show,  by  proper 
averments,  that  the  party  bringing  the  action  is  the  party 
aggrieved ;  it  should  show  the  connection  of  the  party 
with,  and  his  relation  to,  the  attachment  proceedings ;  and 
how,  and  to  what  extent  such  party  has  been  aggrieved  ; 
it  should  also  show  that  prosecution  of  the  bond  has  been 
ordered  by  the  court,  and  that  the  plaintiff  has  been  author- 
ized to  prosecute  the  same.'' 


>  Idem,  §  23.  •  Idem,  §  28. 

"  Idem,  I  24 ;  see  1  Hill,  154  and  168.      "  7    Barb.,    581;    21    Wend.,    57;    see 

'  Idem,  §  25.  Crarj's  Spc.  Bo.,  402. 

*Idem.  §  26;  1  Duer,  512. 

»  2  R.  S.,  539;  §  27;  2  N.  Y.  S.  at  L.,  567. 


THE  ACTION  OF  QUO  WAHEANTO.  175 

CHAPTER  XII. 

THE   ACTION   OF   QUO   WARRANTO. 

The  former  proceeding  by  information  in  the  nature  of  quo 
warranto,  and  the  writ  of  quo  ivarranto,  are  abolished  by  the 
Code,  and  the  remedies  formerlj'  attainable  by  such  forms 
and  proceedings,  are  obtained  by  civil  actions.^  An  exami- 
nation of  the  provisions  of  the  statute  under  which  the  for- 
mer proceedings  were  had,  by  information  in  the  nature  of 
a  quo  warranto,  and  the  provisions  of  the  Code  by  which 
a  civil  action  is  substituted  as  a  means  of  attaining  the 
same  remedies,  will  show  that  the  former  proceeding  by 
information,  and  the  latter  by  action,  are  substantially  the 
same ;  almost  every  provision  of  the  Code  is  a  re-enactment 
of  the  same  or  similar  provisions  of  the  statute  ;  conse- 
quently, the  practice  under  the  Code  will  diifer  from  that 
under  the  statute  only  as  the  practice  in  civil  actions  may 
differ  from  that  in  special  proceedings.  The  differences 
between  the  two  modes  of  proceeding  will  be  pointed  out 
during  the  progress  of  this  chajjter. 

Against  cor])orations.  According  to  the  provisions  of 
the  Code,  the  attorney-general,  whenever  directed  by  the 
legislature,  may  bring  this  action  in  the  name  of  the  peo- 
ple of  this  state  against  a  corporation,  for  the  purpose  of 
vacating  or  annulling  the  act  of  incorporation,  or  an  act 
renewing  its  corporate  existence,  on  the  ground  that  such 
act  or  renewal  was  procured  upon  some  fraudulent  sug- 
gestion, or  concealment  of  a  material  fact,  by  the  persons 
incorporated,  or  by  some  of  them,  or  with  their  knowledge 
and  consent.^  Or  the  attorney-general  may  bring  the  like 
action  on  leave  granted  for  that  purpose  by  the  supreme 
court,  or  a  judge  thereof,^  for  the  purpose  of  vacating  the 
charter,  or  annulling  the  existence  of  a  corporation — other 
than  municipal — whenever  such  corporation  shall,  either: 
1.  Offend  against  any  of  the  provisions  of  the  act  or  acts 
creating,  altering  or  renewing  such  corporation ;  or,  2. 
"When  it  shall  have  violated  the  provisions  of  any  law  by 


»  C!ode,  §  428.  '  See  2  R,  S.,  583,  §  41. 

»  Code,  §  429. 


176  ADMINISTRATION  OF   CIVIL  JUSTICE. 

"which  such  corporation  shall  have  forfeited  its  charter  by 
abuse  of  its  powers ;  or,  3.  Whenever  it  shall  have  forfeited 
its  privileges  or  franchises  by  failure  to  exercise  its  powers ; 
or,  4.  Whenever  it  shall  have  done  or  omitted  any  act 
which  amounts  to  a  surrender  of  its  corporate  rights, 
privileges  and  franchises  ;  or,  5.  Whenever  it  shall  exer- 
cise a  franchise  or  privilege  not  conferred  upon  it  by  law  ; 
and  it  is  made  the  duty  of  the  attorney-general,  whenever 
he  has  reason  to  believe  that  any  of  these  acts  and  omis- 
sions can  be  established  by  proof,  to  apply  for  such  leave  ; 
and  upon  leave  being  granted,  to  bring  such  action,  in 
every  case  of  public  interest,  and  also  in  every  other  case 
where  satisfactory  security  for  costs  and  expenses  shall  be 
given.^  Actions  of  this  character  must  be  brought  by  the 
attorney-general,  in  the  name  of  the  people  of  the  state.'' 

Leave,  hoiv  obtained.  Leave  to  bring  the  action  is  granted 
upon  the  apfjlicatiou  of  the  attorney-general ;  and  the 
court,  in  its  discretion,  directs  notice  of  such  application 
to  be  given  to  the  corporation  or  to  its  officers,  previous  to 
granting  such  leave  ;  and  it  may  hear  the  corporation  in 
opposition  thereto.^  These  provisions  of  the  Code  for  pro- 
ceedings against  corporations  are  the  same  as  they  were 
by  statute.*  The  statute  provided  that  leave  to  file  the 
information  might  be  granted  by  the  supreme  court,  in  term 
time ;  or  by  any  justice  thereof,  but  by  no  other  officer, 
upon  the  application  of  the  attorney-general,  in  vacation.^ 
The  same  is  probably  applicable  under  the  Code,  although 
it  does  not  specify  that  the  application  shall  be  to  the 
supreme  court,  in  term  time,  and  to  a  judge  thereof  in 
vacation. 

The  Code  has  not  specified  any  particular  practice  in 
the  action  of  quo  ivarranto;  probably  the  practice  under  the 
statute,  so  far  as  the  same  may  be  applicable,  would  be  fol- 
lowed in  aid  of  the  civil  practice.  Under  the  statute,  the 
attorney-general,  obtaining  leave  to  file  his  information, 
caused  the  same  to  be  indorsed  thereon,  under  the  hand 
of  the  clerk  of  the  court,  or  by  the  justice  granting  the 
same,  and  forthwith  filed  the  same  f  and  thereupon  a  wrrit 
of  summons  was  issued  against  the  corporation,  directed 
to  the  sheriff  of  the  county  where  the  principal  office  of 
the  corporation  or  place  of  business  are  situated,  command- 

'  Code,  §  430 ;  see  2  R.  S.,  683,  §  39.       *  2  R  S.,  583,  §  39. 
»  12  How.,  187.  '  2  R.  S.,  583,  §  40. 

•  Code,  §  431.  •  2  R.  S.,  584,  §  41. 


THE  ACTION  OP  QUO  WARRANTO.  177 

iDg  him  to  summon  the  corporation  to  appear  in  the 
supreme  court  and  answer  the  information  filed.' 

The  summons  thus  issued  was  served,  in  proper  time, 
on  the  presiding  officer,  the  cashier,  the  secretary  or  the 
treasurer  of  the  corporation  ;  and  when  there  was  no  such 
officer  in  the  corporation,  then  the  court  directed  on  what 
officer  or  other  member  of  the  corporation  the  service 
should  be  made,  or  in  what  manner  it  should  be  done.^ 

Under  the  former  practice,  the  information  filed  by  the 
attorney-general  performed  the  office  of  the  complaint,  to 
be  filed  on  leave  in  the  civil  action  under  the  Code  ;  and 
the  substance  and  form  of  the  complaint  to  be  filed  must 
necessarily  be  like  that  of  the  information  under  the  former 
practice.  Every  averment  essential  to  a  valid  information 
must  be  contained  in  the  complaint ;  and  the  summons 
issued  against  the  corporation,  under  the  present  practice, 
can  diffijr  in  nothing  material  from  the  summons  issued 
upon  the  former  information  filed. 

Under  the  former  practice,  where  the  corporation  ap- 
peared by  counsel  on  the  application  for  leave  to  file  an 
iuformation,  and  was  heard  in  opposition  to  granting  such 
leave,  the  issuing  of  process  might  be  dispensed  with  on 
filing  such  iuformation  ;  for  the  corporation  was  already 
sufficiently  informed  of  the  pendency  of  such  proceedings 
against  it.^  In  the  absence  of  any  provision  changing  the 
practice,  in  this  respect,  it  is  presumed  the  old  practice 
would  be  followed. 

In  an  action  against  such  corporation,  if  it  shall  be 
adjudged  that,  by  neglect,  abuse  or  surrender,  it  has 
forfeited  its  corporate  rights,  privileges  and  franchises, 
judgment  must  be  rendered  that  the  corporation  be 
excluded  from  such  corporate  rights,  privileges  and  fran- 
chises, and  that  the  corporation  be  dissolved.*  And  in 
Buch  case,  or  in  case  the  judgment  be  against  persons 
claiming  to  be  a  corporation,  the  court  may  cause  the 
costs  therein  to  be  collected  by  execution  against  the  per- 
sons claiming  to  be  a  corporation ;  or,  by  attachment  or 
process  against  the  directors  or  other  officers  of  such  cor- 
poration.* And  when  judgment  is  thus  rendered  against 
a  corporation,  the  court  has  power  to  restrain  the  corpo- 
ration, or  to  appoint  a  receiver  of  its  property,  and  to  take 


»2R.S.,  584,  §41.  ♦Code,  §442. 

»  2  R.  S.,  458,  §  5.  •  Code,  §  443. 

•  2  R  S.,  584,  §  41. 

IL^23 


178  ADMINISTRATTOX   OF   CIVIL  JUSTICE. 

an  account  and  make  a  distribution  thereof  among  its 
creditors,  according  to  the  provisions  of  the  statute  made 
in  case  of  voluntary  dissohition.^  And  it  is  made  the 
duty  of  the  attorney-general  to  institute  proceedings  for 
such  purpose,  immediately  after  the  rendition  of  such 
judgment.^ 

Actio?i  upon  information  or  complaint  of  course  against 
individuals. 

The  Code  further  provides  that  an  action  may  be  brought 
by  the  attorney-general  in  the  name  of  the  people  of  the 
state,  upon  his  own  information,  or  upon  the  complaint  of 
any  private  party,  against  parties  offending  in  the  follow- 
ing cases :  1.  When  any  person  shall  usurp,  intrude  into, 
or  unlawfully  hold  or  exertjise  any  public  oflSce,  civil  or 
military,  or  any  franchise  within  this  state,  or  any  office 
in  a  corporation  created  by  the  authority  of  this  state  ;  or, 
2.  When  any  public  officer,  civil  or  militarj^  shall  have 
done  or  suffered  an  act  which,  by  the  provisions  of  the 
law,  shall  make  a  forfeiture  of  his  office  ;  or,  3.  When  any 
association  or  number  of  persons  shall  act  within  this  state 
as  a  corporation,  without  being  duly  incorporated.^  Under 
the  old  practice,  information  in  the  like  cases  might  be 
filed  by  the  attorney-general,  either  upon  his  own  relation 
or  upon  that  of  any  private  party;  to  be  tiled  in  the 
supreme  court,  either  in  term  time  or  in  vacation  ;  and  no 
application  to  the  court  for  leave  to  file  the  same  was 
necessary.*  And  where  several  persons  claimed  to  be 
entitled  to  the  same  office,  or  franchise,  one  information 
against  them  all  was  sufficient,^  as  is  now  one  suit  in  the 
like  case.^ 

In  an  action  under  the  Code,  brought  by  the  attorney- 
general  on  the  relation  or  information  of  a  person  having 
an  interest  in  the  question,  the  name  of  such  person  must 
be  joined  with  the  people  as  plaintiffs.'^ 

The  Code  also  provides,  that  whenever  such  an  action 
shall  be  brought  against  a  person  for  usurping  an  office, 


»  2  R.  S.,  467 ;  2  N.  T.  3.  at  L.,  483.         *  2  R.  S.,  581,  §  28. 

'  Code,  §  444.  '  2  R.  S.,  584,  §  45. 

»  Code,  §  432.  '  Code,  §  440. 

*  Code  §  434.  The  People  on  the  relation  of  A.  B.  against  C.  D.  is  the  form 
used.  In  this  action,  brought  on  the  relation  of  the  person  claiming  the  office 
against  the  party  usurping  it,  the  one  claiming  the  office  should  be  joined ;  and 
the  complaint  must  state  fiicts  showing  that  he  is  entitled  to  the  office.  People  v. 
Ryder,  12  N..Y.,  433;  12  Barb.,  304. 


I 


THE  ACTION  OF  QUO  WAERANTO.  179 

the  attorney-general,  in  addition  to  the  statement  of  the 
cause  of  action,  may  set  forth  in  the  complaint  the  name 
of  the  person  rightfully  entitled  to  the  office,  with  a  state- 
ment of  his  rights  thereto  ;  and  in  such  case,  upon  proof 
by  affidavit  that  the  defendant  has  received  fees  or  emolu- 
ments belonging  to  the  office,  and  by  means  of  his  usurpa- 
tion thereof,  an  order  may  be  granted  by  a  judge  of  the 
supreme  court  for  the  arrest  of  such  defendant,  and  hold- 
ing him  to  bail ;  and  under  such  order  he  may  be  arrested 
and  held  to  bail,  in  the  manner  and  with  the  same  effect, 
and  subject  to  the  same  rights  and  liabilities,  as  in  other 
civil  actions  where  the  defendant  is  subject  to  arrest.^  The 
rules  of  pleading  to,  or  answering  the  allegations  of,  the 
complaint,  are  the  same  as  in  other  civil  actions. 

Judgment  in  such  actioiis. 

In  such  cases  the  judgment  may  be  rendered  upon 
the  right  of  the  defendant,  and  also  u]3on  the  right  of  the 
party  alleged  to  be  entitled ;  or,  it  may  be  upon  the  right 
of  the  defendant  only,  as  justice  may  require.^  In  such 
action  against  an  intruder  into  a  public  othce,  if  the  judg- 
ment of  the  court  is  for  the  plaintiff,  it  has  been  held  that 
it  can  only  be  a  judg-meut  of  ouster,  and  for  costs;  that 
the  plaintiff's  claim  for  damages  against  the  defendant  to 
recover  for  fees  collected,  &c.,  must  be  asserted  in  a 
separate  action.'  This  was  different  under  the  Eevised 
Statutes.  If  fees  had  been  received  by  the  defendant,  the 
plaintiff  alleged  it  by  suggestion  after  judgment,  in  the 
proceedings  of  quo  warranto;  and  this  suggestion  was 
filed  and  served  as  a  declaration,  in  a  personal  action,  and 
went  on  to  issue,  trial  and  judgment  for  the  amount  of 
fees  and  emoluments  shown  to  have  been  received  by  the 
defendant,  in  the  same  manner  as  an  ordinary  suit  at  law.* 
But  under  the  provisions  of  the  Code,  which,  in  most 
respects  are  substantially  those  of  the  statute,  an  action 
for  the  damages  sustained  by  the  plaintiff  by  the  unlawful 
intrusion,  is  substituted  for  the  proceeding  by  suggestion.^* 

When  judgment  has  been  rendered  ui)on  the  right  of  the 
person  alleged  to  be  entitled  to  such  office,  and  in  his  favor, 

'Code,  §435;  seethe  same  provision  *2  R.  S.,  582,  583,  §§  31,  34,  38;  3 

in  the  statute ;  2  R.  S.,  582,  §  30.  Abb.,  233. 

*  Code,  §  43G,  same  provision  ;  2  R.  S.,  '  Code,  §  439. 

582,  §  3]  ;  2  N.  Y.  S.  at  L.,  603.  *  Note. 
»  3  Abb.,  233. 


180  ADMINISTRATION  OP  CIVIL  JUSTICE. 

he  then  becomes  entitled,  after  taking  the  oath  of  oflBce, 
and  executing  such  oflBcial  bond  as  may  be  required  by 
law,  to  take  upon  himself  the  execution  of  the  office  ;  and 
it  becomes  his  duty  thereupon,  immediately  to  demand  of 
the  defendant  in  the  action,  all  the  books  and  papers  in 
his  custody  or  within  his  power,  belonging  to  the  office 
from  which  he  shall  have  been  excluded.^ 

The  rendition  of  the  judgment  of  ouster  against  the 
defendant  and  in  favor  of  the  plaintiff,  operates,  upon 
the  instant,  as  an  ouster  of  the  usurping  incumbent ;  and 
the  party  adjudged  to  be  entitled  to  said  office,  upon 
taking  the  official  oath,  giving  bonds,  and  doing  whatever 
the  law  requires  to  entitle  him  to  said  office,  becomes 
invested  with  the  office,  and  entitled  to  demand  and 
have  the  books,  papers,  «&c.,  belonging  thereto.^  But 
such  party  can  institute  no  proceedings  to  compel  the 
delivery  of  such  books  and  papers,  until  after  a  judgment 
of  ouster  has  been  rendered  against  the  defendant,  and  in 
his  favor,  and  he  has  made  himself  entitled  to  the  posses- 
sion of  the  same.^ 

The  relator  having  been  adjudged  to  be  entitled  to  the 
office,  must  immediately  proceed  to  qualify  himself  for 
the  legal  occupancy  of  the  same ;  and  it  is  the  duty  of  the 
defendant  to  deliver  up,  on  demand,  all  books  and  papers 
in  his  custody  or  within  his  power,  belonging  to  such 
office,  to  the  relator.*  And  such  defendant,  refusing  or 
neglecting  to  deliver  over  such  books  and  papers,  pur- 
suant to  the  demand,  is  deemed  guilty  of  a  misdemeanor, 
and  is  subject  to  be  proceeded  against  under  the  provisions 
of  the  statute  entitled  proceedings  to  compel  the  delivery 
of  books  and  papers  by  public  officers,  to  their  successors.* 

Where  the  defendant  thus  neglects  to  deliver  over  any 
books  and  papers  as  required,  the  party  entitled  to  the 
possession  of  the  same  makes  complaint  thereof,  upon 
oath,  to  any  justice  of  the  supreme  court  or  first  judge  of 
the  county  where  the  defendant  resides,  and  if  the  judge 
or  officer  be  satisfied,  by  the  oath  of  the  complainant,  and 
such  other  testimony  as  shall  be  offered,  that  any  such 
books  or  papers  are  withheld,  he  grants  an  order  directing 


•  Code,  §  437. 

»  7  How  ,  282  ;  Code  §  437. 
»  14  Barb.,  396;  7  How.,  173. 

*  Code,  §  437  ;  2  R.  S.,  532,  §  32 ;  2  N.  Y.  S.  at  L.,  603. 
»  1  R.  S.,  124  and  125  §§  50-56;  1  N.  Y.  S.  at  L.,  114. 


THE  ACTION  OP  QUO  WAEKAFTO.  181 

the  defendant  to  sliow  cause  before  him,  within  a  short 
and  reasonable  time,  why  he  should  not  be  compelled  to 
deliver  the  same.^  Such  complaint  should  state  every 
essential  particular  necessary  to  show  the  party  applying 
to  be  entitled  to  the  order.  A  general  allegation  that  a 
judgment  had  been  rendered  and  duly  perfected  in  an 
action  in  the  nature  of  a  quo  ivarranto,  brought  by  the 
people  to  try  the  right  of  an  individual  to  an  office  on  a 
certain  day,  without  stating  in  what  court  the  judgment 
was  rendered,  or  whether  under  the  direction  of  a  single 
judge,  or  at  general  or  special  term,  is  not  sufficient, 
especially  if  the  allegations  are  denied.^ 

Where  the  relator  proposes  to  proceed  against  an  oflBcer 
de  facto,  to  compel  the  delivery  of  books  and  papers,  &c., 
his  title  to  the  office  should  be  unquestioned,  if  it  has  not 
been  previously  settled  by  adjudication.  If  his  title  to  the 
office  be  not  clear,  his  remedy  is  by  action  in  the  nature 
of  a  quo  warranto,^  and  not  by  a  proceeding  under  the 
statute.'' 

Where  proceedings  have  been  instituted  under  the  statute 
to  obtain  the  possession  of  the  books  and  papers,  &c.,  and 
the  defendant  has  been  ordered  to  show  cause,  the  officer 
at  the  time  appointed  for  that  purpose,  or  to  which  such 
matter  may  be  adjourned,  must  proceed  to  inquire  into  the 
circumstances.  It*  the  person  thus  charged  appear  and 
make  affidavit  before  such  officer,  that  he  has  truly  deliv- 
ered over  to  the  relator  all  such  books  and  papers  in  his 
custody  or  appertaining  to  his  office  within  his  knowledge, 
all  further  ijroceediugs  before  such  officer  must  cease,  and 
the  defendant  be  discharged.^  But  the  defendant  not 
making  any  such  oath,  and  it  appearing  that  such  books 
and  papers  are  withheld,  the  officer  issues  his  warrant  to 
commit  the  defendant  to  the  jail  until  he  deliver  the  books 
and  papers,  or  be  otherwise  discharged.^ 

The  officer  may  also  issue  his  warrant,  directed  to  any 
sheriff  or  constable,  requiring  him,  in  the  day  time,  to 
search  such  places  as  he  shall  designate  in  such  warrant, 
for  such  books  and  papers,  and  seize  them  and  bring  them 
before  him,"'  who  shall  inquire  into  and  examine  whether 


•  1  R.  S.,  125,  §  51.  ♦  1  R.  S.,  125,  §8  51,  52,  53. 

•  U  Barb.,  396.  » Idem,  §  52. 

•  Jn  matter  of  Daniel  S.  Baktr,  11  How.,  '  Idem,  g  53. 

418.  '  Idem,  §  54. 


182  ADMINISTRATION  OF  CIVIL  JUSTICE. 

the  same  belong  to  said  office,  and  if  he  shall  so  find,  he 
must  cause  the  same  to  be  delivered  to  the  complainant.^ 

Action  to  vacate  a  patent. 

The  attorney-general  may  also  bring  an  action  in  the 
name  of  the  people  of  the  state,  for  the  purpose  of  vacat- 
ing or  aimulling  letters  patent  granted  by  the  people  of 
this  state,  in  the  following  cases :  1.  When  he  shall  have 
reason  to  beheve  that  such  letters  patent  were  obtained  by 
means  of  some  fraudulent  suggestion,  or  concealment  of  a 
material  fact,  made  by  the  person  to  whom  the  same  were 
issued  or  made,  or  with  his  consent  or  knowledge  ;  or,  2. 
When  he  shall  have  reason  to  believe  that  such  letters 
patent  were  issued  through  mistake,  or  in  ignorance  of  a 
material  fact ;  or,  3.  When  he  shall  have  reason  to  believe 
that  the  patentee,  or  those  claiming  under  him,  have  done 
or  omitted  an  act  in  violation  of  the  terms  and  conditions 
on  which  the  letters  patent  were  granted,  or  have  by  any 
other  means  forfeited  the  interest  acquired  under  the  same.' 

Upon  the  rendition  of  a  judgment  against  a  corporation, 
or  for  vacating  or  annulling  of  letters  patent,  it  is  the  duty 
of  the  attorney-general  to  cause  a  copy  of  the  judgment 
roll  to  be  forthwith  filed  in  the  office  of  the  secretary  of 
state.^  And  when  the  record  relates  to  letters  patent,  the 
secretary,  thereupon,  makes  an  entry  in  the  records  of 
the  commissioners  of  the  land  office,  of  the  substance  and 
efi'ect  of  such  judgment,  and  of  the  time  when  the  record 
thereof  was  docketed ;  and  the  real  property  granted  by 
such  letters  patent  may  thereafter  be  disposed  of  by  such 
commissioner,  in  the  same  manner  as  if  such  letters  had 
never  been  issued.* 


'  Idem,  §  55.  '  Idem,  8  445. 

'  Code,  §  433.  *  Idem,  §  446. 


OF  MANDAMUS  AND  PROHIBITION.  183 

CHAPTER  XIII. 

OF  MANDAMUS  AND  PROHIBITION. 

Mandamus. 

General  observations. 

The  writ  of  maudamus  is  a  high  prerogative  writ,  issued 
in  the  name  of  the  people,  by  the  supreme  court,  and 
directed  to  any  person,  corporation  or  inferior  jurisdiction, 
within  the  state,  requiring  the  doing  of  some  particular 
thing  therein  specified,  which  pertains  to  the  office  or  duty 
of  such  person,  corporation  or  inferior  jurisdiction,  and 
which  such  court  has  i3reviously  determined,  or  at  least 
supposed,  to  be  consonant  to  right  and  justice.^  This  writ 
is  issued  or  withheld  in  the  discretion  of  the  court,  and  the 
court,  in  issuing  it,  will  be  governed  by  what  seems  to  be 
necessary  and  proper  to  be  done  in  the  jDremises,  for  the 
purposes  of  justice.^ 

It  will  not  be  issued  in  cases  of  doiibtfid  right.  The  legal 
right  of  the  party  to  that  which  he  demands  in  the  writ 
must  be  clearly  established,^  and  to  entitle  a  party  to  this 
writ,  it  must  appear  that  there  is  no  other  specific  legal 
remedy  to  which  he  can  resort  for  the  enforcement  of  his 
right.  "SMiere  the  party  has  an  adequate  remedy  by  action, 
this  writ  will  not  be  awarded,*  and  it  is  granted  only  for 
public  purposes  to  compel  the  performance  of  puhlic  duties,* 
and  there  must  have  been  a  neglect  or  a  refusal  to  perform 
such  duties,  after  a  demand  had  been  made  for  their  per- 
formance.^ 

It  will  not  he  issued  ivhere  it  would  he  unavailing.  Thus, 
it  is  held  that  a  mandamus  should  not  be  granted  where  it 
would  be  unavailing  from  a  want  of  power  in  the  defend- 
ants ;  for  the  court  should  refuse  the  writ  if  it  be  manifest 
that  it  would  be  vain  and  fruitless.     Thus,  a  mandamus 


'  See  3  Bl.  Com.,  110;   12  Wheat.,  561;  2  Johns.  Cas.,  217,  2d  ed.,  note. 
'  4  Hill,  583 ;   15  BarV>.,  607.     But  the  exercise  of  a  discretionary  power  may  b« 
compelled.   13  Barb.,  206. 

'  11  N.  Y.,  5C3 ;   13  Barb.,  444;  8  Pet.,  '  2  Johns.  Cas.,  217,  note;  3  Bl.  Com., 

291;  11  How.  U.  S.  R.,  272.  110. 

*  10  How.,  544 ;  6  Hill,  243 ;  25  Wend.,  «  7  Lond.  Jur.,  233. 

680;  11  N.  y..  563. 


184  ADMINISTRATION  OP  CIYIL  JUSTICE. 

to  compel  a  board  of  canvassers  to  do  certain  acts,  after 
they  have  ceased  to  exist  as  a  board,  would  be  futile.^  The 
supreme  court  may  interfere  to  control  the  action  of  a 
board  of  canvassers  while  they  exist  as  a  board ;  but  it  can 
be  done  only  while  such  board  has  a  legal  existence.^  And 
where  a  mandamus  is  asked,  it  should  appear  that  the 
defendants  have  it  yet  in  their  power  to  perform  the  duty 
required  of  them.^  Thus,  a  mandamus  should  not  be  issued 
to  direct  commissioners  of  excise  to  entertain  the  applica- 
tion of  the  petitioner  after  the  board  had  met  and  com- 
pleted the  ten  days  limited  in  the  act.^ 

This  writ  lies  to  compel  the  performance  of  ministerial 
acts,  and  is  also  addressed  to  subordinate  judicial  tribunals, 
requiring  them  to  exercise  their  judicial  functions  by  ren- 
dering some  judgment  in  cases  legally  before  them,  where 
there  would  be  a  failure  of  justice  from  a  delay  or  refusal 
to  act.  But  there  is  this  difference ;  with  respect  to  judicial 
tribunals,  they  will  require  them  to  act,  in  giving  judg- 
ment, &c.,  without  assuming  to  determine  what  that  action 
shall  be,  or  to  control  such  action ;  but  in  respect  to  min- 
isterial action,  it  specifies  the  particular  act  to  be  done."* 

Although  a  mandamus  does  not  lie  to  control  a  discre- 
tionary power,  yet  it  will  compel  the  exercise  of  such  power 
in  cases  where  it  legally  exists,  as,  where  an  officer  is 
invested  with  power,  and  is  required  to  grant  a  license  to 
the  applicant,  on  his  complying  with  certain  conditions, 
to  be  determined  by  said  officer,  and  the  applicant  has 
complied  with  the  necessary  conditions,  but  the  oflBcer 
refuses  to  grant  the  license,  upon  the  ground  that  he  has 
concluded  to  grant  no  licenses  ;  in  such  case  a  mandamus 
will  lie.^ 

In  general,  the  supreme  court  should  not  interfere  by 
mandamus,  with  that  portion  of  the  practice  of  inferior 
courts,  which  does  not  depend  upon  established  principles 
or  is  not  regulated  by  fixed  rules.® 

Agahist  whom,  and  when  the  writ  wUl  lie. 

The  writ,  in  proper  cases,  will  lie  against  inferior  courts, 
corporations  and  ministerial  officers. 


» 12  Barb.,  217;  11  How.,  89;  15  Barb.,  Dowl.  &  Ryl.,  334;  5  Halst,  57;  7 

607.  Id.,  179. 

»  Supra,  and  16  Barb.,  52.  »  13  Barb.,  206;  1  Hill,  655  ;  19  Johns., 

*  7  Abb.,  34.  259  ;   12  Id.,  414  ;   6  Hovsr.,  81. 

♦  3  DalL,  42;    13  Peters,  279,  404;    7  *  15  How.,  385;  2  Id.,  59;  5  Wend.,  114. 


OP  MAinOAMUS  AND  PEOHTBITION.  185 

Against  inferior  courts. 

This  writ  lies  to  set  an  inferior  court  in  motion,  where  it 
refuses  to  act ;  but  it  will  not  require  that  court  to  come 
to  any  particular  decision,  or  to  retrace  its  steps  where  it 
has  acted.^  Nor  will  it  be  granted  where  the  court  has 
acted  judicially  in  making  its  decision,  for  the  purpose  of 
reviewing  or  correcting  such  decision,^  not  even  for  the 
purpose  of  enabling  the  party  applying  to  bring  error.' 
The  writ  of  mandamus  cannot  be  awarded  for  the  correc- 
tion of  judicial  errors*  Nor  has  the  court  jurisdiction,  by 
mandamus,  to  review  the  decisions  of  a  subordinate  court 
in  a  matter  of  which  such  subordinate  court  had  judicial 
cognizance.^ 

When  the  writ  is  directed  to  judicial  oflScers,  its  mandate 
is,  that  they  proceed — adjudicate — exercise  a  discretion 
upon  a  particular  subject.  It  will  direct  the  judge  or  court 
to  proceed  to  render  judgment,  tut  will  not  direct  wliat  judg- 
ment  shall  le  rendered.^  Thus  the  court,  by  mandamus, 
will  require  a  subordinate  court  to  settle  a  case  after  the 
denial  of  a  motion  to  set  aside  the  report  of  a  referee,  so  as 
to  enable  the  party  to  briug  error  ;  but  it  will  not  direct 
what  facts  shall  be  inserted  in  the  case?  So,  the  supreme 
court  will  require  an  inferior  court  to  proceed  in  the  exer- 
cise of  its  judicial  discretion,  but  it  will  not  attempt  to 
control  that  discretion.* 

As  this  writ  will  not  lie  to  control  or  direct  the  discretion 
of  the  court,  it  will  not  be  allowed  to  compel  a  subordinate 
court  to  grant  a  new  trial  upon  the  merits  f  nor  to  vacate 
a  rule  granting  an  amendment  in  any  case  within  the  power 
of  the  court  ;"*  nor  to  vacate  a  rule  setting  aside  a  regular 
default  and  permitting  the  defendant  to  plead,  on  payment 
of  costs  ;^^  nor,  generally,  will  it  be  granted  for  the  pur- 
pose of  controlling  the  practice  in  other  courts.'^ 

But  this  writ  will  be  granted  for  the  purpose  of  compel- 
ling an  inferior  court  to  do  some  act  belonging  to  its  duty. 
Thus,  it  will  compel  an  inferior  court  to  give  judgment,  in 


'2  Denio,  192;  18  Wend.,  79;  13  '20  Pick.,  484;  13  Pet,  219,  404;  7 

How.,  277  ;  20  Wend.,  658  ;  1     Dowl.  &  Ryl.,  334. 

Halst.,  157  ;  5  Id.,  57 ;  2  Bibb.,  '  20  Wend.,  663. 

573.  »19  Johns.,  260;  18  Wend.,  92:  12 
»  Idem ;  20  Wend.,  658.  Barb.,  446. 

•2  Denio,  191.  '2  Cow.,  479. 

♦  Per  Bronson,  Ch.  J.,  20  Wend.,  653.  "  IG  Wend.,  617  ;  20  Id.,  658. 

•18  Wend.,  79;  10  Pick.,  244;  13  Pet.,  "  6  Cow.,  392. 

279,  404.  "  16  How.,  200 ;  15  Id.,  392. 


186 


ADMINISTRATION  OF  CIVIL  JUSTICE. 


order  that  an  appeal  may  be  brought  ;^  or  -will  compel  a 
justice  of  the  peace  to  issue  an  execution  upon  a  judgment 
rendered  by  him  -^  or  a  court  of  sessions  to  enter  judg- 
ment on  a  verdict  where  the  court  had  no  power  to  grant 
a  new  trial  ;^  or  to  settle  a  case  after  denial  of  a  motion  to 
set  aside  the  report  of  a  referee,  so  as  to  enable  the  party 
to  appeal.* 

This  writ  will  not  be  granted  to  be  directed  to  a  court 
acting  under  a  special  commission,  which  had  expired  by 
its  own  limitation  prior  to  the  application  for  the  writ.^ 

A  mandamus  will  not  lie  to  the  common  pleas,  to  correct 
the  taxation  of  a  bill  of  costs  in  items  dependent,  in  a 
measure,  upon  discretion ;  thus,  how  many  folios  should 
be  disregarded  as  unnecessary  f  nor  will  it  lie  to  review 
the  determination  of  a  question  of  fact  on  the  weight  of 
evidence,  as  an  order  setting  aside  the  report  of  referees.' 

Against  corporations. 

This  writ  also  lies  against  corporations,  to  compel  them 
to  perform  the  duties  which  the  law  imposes  upon  them. 
But  it  lies  only  in  those  cases  where  the  party  has  not 
an  adequate  remedy  by  action  f  as,  where  a  corporation 
improperly  refuses  to  transfer  stock ;  the  party  has  an 
ample,  though  not  a  specific,  remedy  by  action,  and  for 
that  reason  a  mandamus  will  not  lie.^  Nor  will  it  lie 
against  a  municipal  corporation  to  compel  it  to  file  and 
confirm  an  assessment  of  damages  for  the  laying  out  of  a 
street.  If  the  relator's  rights  are  vested,  he  should  sue  in 
assumpsit  for  the  money,  or  in  case,  for  the  refusal  to  pro- 
ceed.'" The  general  rule  applicable  in  these  cases  is,  that 
a  mandamus  will  lie  only  to  enforce  a  clear  legal  right, 
where  a  remedy  at  law  is  either  wanting  or  doubtful." 

Although  it  is  a  general  rule  that  a  mandamus  will  not 
be  granted  where  the  applicant  has  a  legal  remedy,  but 
in  cases  of  corporations  and  ministerial  officers,  they  may 
perhaps  be  compelled  by  mandamus  to  exercise  their  func- 


'  2  Johns.  Gas.,  215. 
'  2  How.,  109. 

*  1  Joha.s.  Gas.,  179. 

*  20  Wend.,  66.3. 

*  10  Wend.,  108. 

*  19  Wend.,  113. 

*  19  Wend.,  68. 


"2  Gow.,  444;  1  Wend.,  318. 
•  Per  Bronson,  Ch.  J.,  6  Hill,  243  ;  20 
Wend.,  91;  22  Wend.,  348;  10 
Johns.,  484. 
»  1  Wend.,  318. 

"  2  N.  y.,  490  ;  11  N.  T.,  563 ;  5  Mete, 
73  ;  26  Barb.,  73. 


OF  MANDAMUS  AKD  PROHIBITION.  187 

tions  according  to  law,  notwitlistandrng  they  may  be  liable 
to  au  action  for  refusal.^ 

Agamst  officers. 

Where  subordinate  public  agents  refuse  to  act,  or  enter- 
tain a  question  for  their  discretion  in  cases  where  the  law 
enjoins  them  to  do  the  act  required  by  law,  the  court  may 
enforce  obedience  to  the  law  by  mandamus,  where  no 
other  remedy  exists.^  As,  where  the  supervisors  of  a 
county  refuse  to  allow  a  claim,  on  the  ground  that  it  is 
not  a  county  charge,  when  by  law  it  is  such  charge,  a  man- 
damus lies  to  compel  them  to  admit  it  as  such,  and  to 
exercise  their  discretion  as  to  the  amount  to  be  allowed.^ 
But  if  their  discretion  extended  to  allowing  or  rejecting  the 
claim,  a  mandamus  would  not  lie  to  compel  such  allowance.* 

As  against  corporations  and  ministerial  officers,  a  man- 
damus may  be  granted  not  only  requiring  them  to  proceed 
in  the  discharge  of  their  duty,  but  also  directing  the  man- 
ner in  which  they  shall  act,  and,  specifically,  what  they 
shall  do.^  Thus  a  writ  has  been  allowed  to  compel  super- 
visors of  a  county  to  allow  the  expenses  of  a  county  clerk 
incurred  by  him  according  to  law.^  So,  also,  to  compel 
them  to  restore  the  names  of  certain  banks  which  have 
been  stricken  from  the  assessment  roll  as  made  by  the 
assessors.'  Also,  to  issue  warrants  for  the  military  com- 
mutation ;  and,  being  neglected  at  their  annual  meeting, 
they  have  been  comiDelled  to  meet  again  and  perform  that 
duty.^ 

Mandamus  is  also  the  appropriate  remedy  by  which  the 
supervisors  are  compelled  to  levy  and  collect  money 
which,  by  statute,  is  made  a  county  charge  f  or  to  levy 
and  collect  the  amount  of  damages  sustained  by  the 
owners  of  land  taken  for  the  improvement  of  a  public 
highway.'"  But  it  will  not  lie  to  compel  them  to  allow  the 
compensation  of  a  district  attorney  for  his  services  on 
certiorari  in  a  criminal  case,  which  has  been  certified  by  a 
justice  of  the  peace.    Because,  if  they  have  a  discretion 


'  23  Wend.,  448;  2  Barb.,  397;  but  see  11  N.  Y.,  563. 

»  6How.,  81;  19  Johns.,  259;  1  Cow.,  '  18  Johns.,  242  ;  1  How.,  1G3. 

417.  '  4  Hill,  20. 

•  19  Johns.,  259;  1  Hill,  50.  "  8  N.  Y..  318. 

•  25  Wend.,  G92.  '  10  Wend.,  363. 

•  See  20  Wend.,  658  ;  19  Johns.,  2G3  ;  '"  4  Barb.,  64. 

13  How.,  277. 


188  ADMINISTRATION  OF  CIVIL  JUSTICE. 

as  to  its  allowance,  it  cannot  be  controlled ;  if  not,  that  is 
if  the  certificate  is  conclusive,  the  remedy  is  by  action.^ 
Mandamus  is  also  the  proper  remedy  to  compel  the  board 
of  supervisors  of  the  city  and  county  of  New  York  to 
reduce  a  tax  imposed  on  the  real  property  of  the  plaintiff, 
on  the  ground  that  the  valuation  of  the  land  was  too  high. 
The  rule  laid  down  is,  that  where  a  specific  duty  is  im- 
posed on  the  supervisors,  or  any  other  public  ofiicer,  by 
statute,  and  they  do  not  conform  to  the  statute,  and  the 
omission  to  conform  affects  a  particular  party  only,  and 
not  the  whole  assessment  list,  a  mandamus  will  issue  to 
compel  such  officers,  &c.* 

Commissioners  of  highways  may  be  compelled  by  man- 
damus to  discharge  their  duties.^  But  a  mandamus  should 
not  be  resorted  to  to  compel  them  to  open  a  highway 
when  its  necessary  effect  would  be  to  subject  them  to  an 
action  of  trespass.* 

So  a  mandamus  lies  to  compel  the  supervisors  and  over- 
seers of  the  poor  of  towns,  created  by  a  division  of  a  former 
town,  to  make  an  apportionment  of  the  expenses  of  pau- 
pers, who  were  omitted  by  them  in  the  division  of  paupers, 
unless  they  had  acted  on  the  case,  and  adjudged  the  per- 
sons in  question,  not  to  be  paupers.^  So  a  mandamus  was 
granted  where  a  judge  of  the  county  court  omitted  to  file 
his  decision  in  a  case  for  more  than  twenty  days  after  the 
court  at  which  the  trial  took  place.^  So  it  is  the  proper 
remedy  to  compel  the  proper  ofiicer  to  administer  the  oath 
of  office  to  a  party  entitled  to  enter  upon  an  office.^  It  is 
the  appropriate  remedy  to  compel  a  county  treasurer  to 
pay,  when  he  refuses  to  pay  a  demand,  legally  audited  and 
allowed  by  the  board  of  supervisors  and  directed  to  be 
paid.^  But  it  will  not  be  awarded  to  compel  him  to  pay  a 
demand,  not  a  legal  charge  against  the  county,  although 
it  has  been  allowed  by  the  supervisors.^ 

This  writ  is  allowable  whenever  a  party  has  a  legal  right, 
and  is  entitled  to  a  specific  remedy  to  enforce  it,  and  a 
public  officer  whose  duty  it  is  to  afford  that  remedy,  refuses 
to  afford  it.    Thus  it  will  lie  to  compel  the  clerk  of  an 


» 14  Barb.,  52.  •  2  Cow.,  485. 

•12  How.,   224;    19  Jolins.,   259;    1  '  See  Code,  §  26T ;  5  How.,  47, 

Hill,  362  ;  4  Paige,  399  ;  10  Wend.,  "•  4  Abb.,  35  ;  3  HiU,  42. 

393;   18  Id.,  659.  *  19  Barb.,  468. 

'  19  Wend.,  56 ;   1  Cow.,  23.  •  23  Barb.,  349 ;  see  6  Hill,  244. 
*27  Barb.,  94;  3  Hill,  458. 


OP  MANDAMUS  AND  PROHIBITION.  189 

inferior  court  to  issue  an  execution  on  a  judgment  which  an 
appellate  court,  without  jurisdiction,  assumed  to  reverse.^ 
But  when  the  question  is  one  of  irregularity  and  not  of 
jurisdiction,  the  irregularity  will  be  waived  by  arguing  the 
appeal  on  its  merits,  and  a  mandamus  will  not  lie.^ 

A  mandamus  will  also  be  awarded  to  compel  the  attor- 
ney-general to  give  a  certificate,  that  a  suit  was  duly 
instituted  as  required  by  law,  when  such  certificate  is 
necessary  in  order  to  collect  costs  against  the  state.^  The 
performance  of  an  official  duty,  not  limited  in  respect  to 
the  particular  person  holding  the  office,  or  the  time  of  per- 
formance, may  be  enforced  by  mandamus,  notwithstanding 
the  term  of  office  is  about  to  expire.*  And  the  mandamus 
may  be  awarded  requiring  the  sheriff*  to  execute  a  deed, 
even  where  he  has  already  executed  one  to  a  third  person, 
who  has  conveyed  the  premises  to  a  bona  fide  purchaser.^ 
The  sheriff"  must  do  his  duty,  although  the  act  be  incon- 
sistent with  what  he  had  previously  done.* 

This  writ  is  sometimes  resorted  to  for  the  purpose  of 
restoring  an  individual  to  an  office,  where  he  has  been 
illegally  deprived  of  the  possession  thereof^  But  the  court 
will  not  grant  a  mandamus  to  admit  a  person  to  an  office, 
where  the  office  is  already  filled  by  another  person,  who 
has  been  admitted  and  sworn  and  is  in  by  color  of  right.'^ 
Says  Justice  S.  B.  Strong:  1.  "A  mandamus  is  inappro- 
priate where  there  is  a  real  and  substantial  dispute  as  to 
the  title  to  an  office ;  2.  Where  the  right  of  the  applicant 
is  clear  and  unquestionable,  and  the  possession  of  the  books 
and  papers  is  all  that  is  necessary  to  enable  him  to  per- 
form fully  and  satisfactorilj^  the  duties  of  the  office,  a 
resort  to  the  summary  process  of  the  court  given  by  statute 
to  obtain  such  books,  &c.,  renders  a  mandamus  unneces- 
sary. But  when  the  title  to  the  office  is  indisputable,  and 
the  objection  thereto  is  wholly  frivolous,  and  the  books 
and  pai)ers  would  not  give  him  the  entire  control  of  the 
office,  the  remedy  by  the  proceedings  substituted  by  the 
Code  for  the  writ  of  quo  warranto,  would,  in  many  cases, 
be  so  dilatory  as  to  amount  to  a  failure  of  justice ;  and  that 


»  3  Abb.,  309  ;  13  How.,  260;  2IIow.,  *  19  Wend.,  56. 
109.  '2  N.  Y.,  484. 

•  10  How.,  199.  '2  Johns.  Gas.,  217. 

•  17  How.,  10.  '  3  Johns.  Gas.,  79 ;  20  Barb.,  302. 


190  ADMINISTRATION  OP  CIVIL  JUSTICE. 

in  such  cases  a  mandamus  would  be  proper  and  should  be 
awarded.^ 

Against  private  persons  and  officers  of  corporations. 

When  a  director  of  a  bank  is  deprived  of  his  right  to 
inspect  the  books  of  the  bank,  he  may  have  a  mandamus 
to  enforce  his  right,^  and  the  writ  maj'  be  directed  to  the 
cashier,  he  having  charge  of  the  books.^  So  the  secretary 
of  a  turnpike  corporation  may  be  compelled  by  mandamus 
to  allow  the  relator,  or  a  director  of  the  company  to  exam- 
ine the  books  of  the  corporation.^ 

When  there  is  a  right  to  execute  an  oflSce,  perform  a 
service,  or  exercise  a  franchise,  and  especially  if  it  be  a 
public  concern,  and  attended  with  profit,  and  a  person  is 
kept  out  of  possession,  or  dispossessed  of  such  right,  and 
has  no  other  specific  legal  remedy,  the  court  ought  to 
assist  by  mandamus/  Thus,  a  mandamus  lies  to  com- 
pel trustees  of  a  religious  corporation  to  induct  a  pastor, 
regularly  apijointed  by  the  jjroper  ecclesiastical  authority.^ 
So,  also,  to  compel  a  medical  society  to  restore  a  party  to 
membership  when  he  had  been  illegally  expelled.® 

The  writ  of  mandanvus  and  the  proceedings  thereon. 

The  proceeding  will  be  for  a  jieremptory  mandamus,  an 
alternative  mandamus,  or  an  order  to  show  cause,  which 
is  in  the  nature  of  an  alternative  mandamus.  A  peremp- 
tory mandamus  is  seldom  granted  in  the  first  instance, 
unless  both  parties  have  been  heard  upon  the  application 
therefor,  and  there  exists  no  dispute  about  the  facts,  the 
law  being  with  the  applicant.''  If  it  be  apparent  to  the 
court  that  no  excuse  can  be  given  for  the  non-performance 
of  the  act,  and  the  rights  of  the  part}^  may  be  endangered 
by  delay,  a  peremptory  mandamus  will  be  granted.''  So 
it  is  directed  by  the  statutes^  to  be  granted,  where  a  ver- 
dict on  an  issue  of  fact  is  found  for  the  relator,  or  where 
judgment  upon  demurrer  or  on  default,  is  rendered  in  his 
favor.^° 

Where  the  facts,  on  which  the  applicant  relies,  are  in 
dispute,  an  alternative  mandamus  issues.    The  alternative 


'  7  How.,  128.  •  24  Barb.,  570. 

*  12  Wend.,  183.  '  See  7  Cow.,  526. 
»  1  How.,  247.  »  14  Johns..  325. 

*  7  How.,  124;  3  Barb.,  397.  »  2  R.  S.,  587,  g  57. 

*  Idem;  3  Burr..  1265.  ">  See  3  How.,  380. 


\ 


OF  MAm)AMUS  AND  PROHIBITION.  191 

mandamus  brings  the  questions  to  be  decided,  before  the 
court,  by  a  statement  of  the  facts  upon  which  the  appli- 
cation for  relief  is  founded,  and  the  return  of  the  defend- 
ant made  upon  such  writ,  either,  admitting,  or  denying 
such  statement,  or  confessing  and  avoiding  the  same. 

The  usual  practice  is  to  grant  an  order  to  show  cause 
instead  of  issuing  an  alternative  mandamus,  especially 
when  the  application  is  to  compel  the  performance  of  an 
act  by  a  subordinate  court.^  In  such  case  the  questions 
arising  upon  the  application  are  discussed  upon  affidavits, 
and  no  formal  judgment  is  given.  Formerly  the  only 
practical  difference  between  the  proceeding  upon  an  order 
to  show  cause,  and  an  alternative  mandamus,  was,  that  in 
the  former  case  the  decision  of  the  court  was  filial ;  while 
in  the  latter  case  the  decision  might  be  reviewed.^  But  as 
the  law  now  stands,  either  party  may  appeal  from  the 
decision  of  the  court  made  at  special  term  on  an  order  to 
show  cause.^  Substantially  the  same  end  was  accom- 
plished under  the  former  practice  on  an  order  to  show 
cause ;  for  the  court  on  application  of  either  party,  per- 
mitted the  alternative  mandamus  to  issue,  and  a  formal 
record  to  be  made  up,  on  which  the  party  desiring  might 
have  the  case  reviewed.* 

But  generally,  whether  the  proceeding  is  by  obtaining 
in  the  first  instance  an  alternative  writ,  or  a  rule  to  show 
cause,  the  defendant  vShould  in  every  instance,  before  a 
peremjitory  mandamus  is  awarded  against  him,  have  the 
usual  time  allowed  upon  other  motions,  to  present  his 
defense.  No  motion,  which  in  its  operation  is  to  have 
the  effect  of  a  final  judgment,  ought  to  be  granted  with- 
out giving  the  party  against  whom  it  is  made,  an  t)ijpor- 
tunity  of  being  heard.^ 

The  application  for  the  icrlt  —  affidavit. 

The  application  for  the  writ  of  mandamus  is  based  upon 
affidavits,  stating  the  facts  upon  which  the  api)licant  relies 
for  relief,  and  showing  that  he  is  entitled  thereto,"  and 
where  the  matter  relates  to  private  or  corporate  rights, 
such  facts  should  also  be  stated  as  to  show  the  title  of  the 


'See  10  Wend.,    30;    9   Id.,  472;  2     M2  Wend.,  183;   10  Id.,  31 ;  20  Barb. 

Johns.  Cas.,  G8.  86. 

»  3  How.,  165  ;   10  Wend.,  30.  '  3  How.,  164 ;  15  Johns.,  537, 

»  6  N.  Y.  S.  at  L.,  133  ;  4  Id.,  681.  *  1  Johns.  Cas.,  134. 


X92 


ADMINISTRATION  OF  CIVIL  JUSTICE. 


relator,  otherwise  a  stranger  might  obtain  a  mandamus 
officiously,  and  for  purposes  not  desirable  to  the  real 
party.^  Thus,  an  affidavit  for  an  order  to  show  cause, 
why  a  mandamus  should  not  issue  to  compel  a  court  to 
restore  an  attorney  to  his  office,  should  show  that  the 
court  below  acted  improperly,  or  that  the  charge  against 
the  attorney  was  founded  in  error.^  The  facts  should  be 
set  forth  with  precision,  so  that  an  indictment  for  perjury 
could  be  maintained  upon  them  if  false,'  and  they  should 
anticipate  and  answer  every  possible  objection  or  argu- 
ment in  fact  which  it  may  be  expected  will  be  urged 
against  the  claim.*  Thus,  it  should  show  a  default  on  the 
part  of  the  court,  corporation  or  individual  proceeded 
against,  as,  that  the  applicant  had  applied  to  the  defend- 
ant to  do  the  thing  which  he  requires  the  court  to  command 
him  to  perform,  and  that  there  was  a  refusal  or  neglect  on 
his  part  to  do  the  same.^  It  should  show  that  the  appli- 
cant had  complied  with  everything  necessary  to  constitute 
his  right,^  and  entitle  him  to  the  relief  he  prays.' 

In  an  affidavit,  as  a  foundation  for  a  mandamus  to  com- 
pel an  admission  or  restoration  to  an  office,  the  nature  of 
the  office,  its  duties  and  other  facts  to  show  that  it  is  of  a 
public  nature,  should  be  stated  f  and  where  it  is  by  char- 
ter, the  substance,  as  applicable,  should  be  stated  therein.' 
So  likewise,  the  election  and  other  circumstances,  under 
which  the  applicant  claimed  and  still  claims  to  be  admit- 
ted, must  be  distinctly  stated,  and  shown  to  have  been 
according  to  the  charter,  &c.^  A  deficiency  in  the  affida- 
vit of  the  applicant  is  sometimes  cured  by  statements  in 
the  affidavit  of  the  defendant ;  for  the  court  will  grant  the 
writ  whenever  the  proper  case  is  made  out.^" 

It  is  held  that  the  affidavit  should  not  be  entitled  in 
the  court  where  the  application  is  made,  and  the  reason 
assigned  is,  that  there  is  no  cause  pending  of  which  it 
could  be  entitled ;  and  an  indictment  for  perjury  in  making 
such  an  affidavit  must  fail,  as  it  could  not  be  shown  that 
such  a  cause  existed  in  the  court  in  which  the  affidavit 
•was  made."    But  if  the  entitling  be  such  only  as  is  fairly 


»  19  Wend.,  56 ;  1  How.,  186. 

•  1  Johns.  Cas.,  134;   3  Term  R.,  575; 
»  5  Term  R.,  466. 

•  See  2  Johns.  Gas.,  217,  63,  note. 

•  1  Term  R.,  403 ;  2  Id.,  334. 

•  BuU.  N.  R,  201. 


'  East.,  345 ;  2  N.  Y.,  490. 

•  1  Chit.  Gen.  Pr.,  808. 

•  Bull.  N.  R,  200. 

"S  Term   R.,    596;    3    Steph.   N.   P., 
2319;   2  Johns.  Cas.,  217,  note,  63. 
"  1  Wend.,  291,  per  Savaqe,  J. 


OF  MAXDAMUS  AIsT)  PROHIBITION.  193 

descriptive  of  the  case,  it  will  not  come  within  such 
rule.^ 

The  application  for  the  writ  is  made  to  the  supreme 
court  at  special  term,^  and  should  be  heard  at  special  term.^ 
But  after  the  defendants  have  made  and  filed  a  retm'n 
to  an  alternative  mandamus,  it  will  be  too  late  for  them  to 
object  to  the  form  of  the  writ,  or  that  it  is  not  made  return- 
able at  special  term.^ 

This  application  may  be  made  ex  parte,  but  the  relator 
may  (and  in  many  cases  it  is  the  better  practice),  instead 
of  applying  for  an  order  to  show  cause,  or  makiug  an  ex 
parte  application  for  an  alternative  writ,  to  give  the  ordi- 
nary notice  of  motion,  upon  the  affidavits,  that  a  writ  of 
mandamus  will  be  applied  for  when  the  motion  comes  on 
to  be  heard ;  if  material  facts  appear  to  be  in  dispute 
between  the  parties,  an  alternative  writ  may  be  allowed, 
which  will  lead  to  the  forming  of  an  issue  to  be  tried  by 
jury,  as  will  be  hereafter  shown  ;  if  there  is  no  material 
fact  in  dispute,  the  court  can  at  once  grant  or  deny  the 
peremptory  writ,  thus  at  once  disposing  of  the  questions 
of  law,  and  making  an  order  thereon  that  can  be  reviewed 
in  the  general  term  and  court  of  appeals. 

Order  granting  writ.  If  the  court  decides  to  allow  the 
writ,  an  order  granting  it  should  be  prepared  and  entered 
in  the  county  where  the  proceeding  is  instituted.  The 
order  should  set  forth  substantially  what  the  writ  allowed 
may  command  the  defendants  to  do. 

The  alternative  mandamus. 

The  alternative  mandamus  is  issued  in  the  name  of  the 
people  of  the  state  of  Xew  York,  and  is  directed  to  the  one 
who,  by  law,  is  obhged  to  execute  it,  or  do  the  thing 
rtKiuired  to  be  done.  It  recites  briefly  the  facts  which  pre- 
cede the  injury  complained  of,  and  upon  which  it  is  based; 
it  then  states  the  proceeding  complained  of,  as  stated  in  the 
complaint  of  the  relator ;  it  then  proceeds  to  order  or  com- 
mand the  defendant  that  he  act  in  the  premises,  or  that 
he  do  the  particular  thing  required  to  be  done,  substan- 
tially according  to  the  order  of  the  court  allowing  the 
issuing  of  the  writ,  or  that  he  show  cause  to  the  contrary 


'  See  6  Cow.,  61.  =  11  How.,  89. 

'  Supreme  Court,  Rule  40, 1858 ;  12  Barb.,  219. 

IL— 25 


194  ADMINISTEATION   OF   CIVIL  JUSTICE. 

thereof,  before  the  supreme  court  at  the  next  special  term 
thereof,  to  be  holden,  &c.,  and  also  that  he  return  in  what 
manner  he  execute  the  writ,  &c. 

This  writ  is  in  the  nature  of  a  declaration,  and  must 
state  a  good  title  in  substance.^  The  relator  is  bound  to 
set  forth  therein  suflQcient  facts  to  entitle  him  to  the  relief 
he  claims.^  The  reason  is,  that  if  the  material  facts  on 
which  the  relator  founds  his  claim  are  not  stated  in  the 
writ,  the  defendant  is  deprived  of  the  power  of  traversing- 
them,  for  he  can  only  traverse  what  is  stated  in  the  writ.^ 
But  the  most  cogent  reason  is,  the  process  is  considered 
as  a  declaration,  and  the  relator,  the  actual  x>laintifif ;  and 
the  familiar  rule  that  he  must  succeed,  if  at  all,  upon  the 
strength  of  his  own  allegation,  is  applicable.  Thus,  where 
the  controversy  arises  upon  a  demurrer  to  the  defendant's 
return,  it  is  competent  for  the  defendant  to  avail  himself 
of  any  material  objection  to  the  writ,  agreeably  to  the 
established  rule,  that  the  party  committing  the  first  error 
in  substance,  in  pleading,  must  fail  on  a  general  demurrer.* 

Thus,  where  the  relator  sets  forth  in  the  alternative 
mandamus,  that  he  has  acquired  the  rights  of  the  original 
purchaser  at  sheriff  sale,  first  as  assignee,  and,  secondly, 
as  a  subsequent  judgment  creditor,  it  will  be  a  fatal  objec- 
tion to  his  claim  as  assignee,  that  he  has  not  filed  the 
assignment  to  him,  in  the  office  of  the  clerk  of  the  county 
in  which  the  real  estate  sold  is  situated.^  So,  also,  where 
he  claims  in  the  character  of  a  redeeming  judgment  credi- 
tor, it  must  appear  that  he  has  presented  to,  and  left  with, 
such  purchaser  or  officer  who  made  the  sale,  a  copy  of  the 
docket  of  his  judgment,  a  copy  of  the  assignment  of  it,  if 
any,  duly  verified,  and  an  affidavit  of  the  amount  due 
at  the  time,  &c.  Without  this,  he  had  no  right  to  acquire 
the  title  of  the  original  purchaser.*' 

The  title  of  the  relator  must  be  clearly  and  distinctly 
stated  in  the  alternative  mandamus,  so  that  the  facts 
stated  may  be  admitted  or  traversed.  It  is  not  enough 
to  refer  in  the  writ  to  the  affidavits  and  other  papers  on 
file,  in  which  the  order  for  the  mandamus  was  made, 
although  such  reference  may  be  made  to  show  the  amount 


1  2  N.  Y.,  490.  ''  2  R.  S.,  373,  §  60;  2  ?T.  Y.  S.  at  L,, 
"  10  Wend..  25.  387,  ^  60 ;   2  N.  Y.,  492. 

'  3  Barn.  &  Aid.,  221.  « Idem,  §  60 ;  2  N.  Y.,  493. 
*  2  N.  Y.,  492,  per  SiROXa,  J. 


OF  MA]!a)AMUS  AKD  PROHIBITION.  195 

of  the  money  claimed,  but  not  the  right  of  the  relator 
thereto.^ 

Where  the  writ  enjoins  the  performance  of  a  duty,  it 
should  set  out  the  duty  to  be  performed,^  although  it  need 
not  set  out  by  what  authority  the  duty  exists.^  So,  in 
commanding  a  person  to  undertake  an  office,  it  is  sufficient 
to  show  the  general  liahility  of  the  defendant  to  serve,  and 
to  allege  that  he  was  elected,  and,  without  reasonable 
cause,  refused  to  undertake  the  office ;  but  it  need  not  be 
averred  that  he  was  able  and^f  to  serve.* 

If  the  object  of  the  writ  is  the  production  of  records,  a 
general  description  thereof  will  be  sufficient.^  And  so,  an 
alternative  mandamus  to  a  court  of  common  pleas,  com- 
manding it  to  seal  a  bill  of  exceptions,  need  not  set  forth 
such  bill;  it  may  be  served  by  copy,  at  the  same  time 
showing  the  original.^ 

This  writ  is  tested,  signed  and  sealed  in  the  usual  man- 
ner, although  not  a  process  within  the  meaning  of  the 
statute  regalating  the  test  and  return  of  process.' 

To  whoin  directed. 

The  writ  must  be  directed  to  the  one  whose  legal  duty 
requires  him  to  execute  it,  or  do  the  thing  required  to  be 
done.  If  the  du-ection  of  the  writ  include  any  who  are 
not  authorized  to  act  in  the  premises,  it  will  be  bad ;  as, 
where  it  was  directed  to  the  mayor  and  clerk  of  Hereford, 
when  in  fact  the  mayor  only  was  authorized  to  act.^  And 
for  a  similar  reason,  the  same  writ  of  mandamus  cannot 
be  directed  to  the  township  committees  of  two  several 
townships,  to  compel  them  to  proceed  to  do  their  duty  in 
a  matter  of  a  road.^ 

Where  the  mandamus  was  sued  out  to  commissioners 
of  highways,  to  require  them  to  act  as  such  commission- 
ers, it  was  held,  that  in  the  first  instance,  it  need  not  be 
directed  to  them  by  their  individual  names,  it  being  only 
in  case  of  disobedience  to  the  writ,  they  were  liable  to  be 
proceeded  against  individually.^" 


'  7  Term  R..  52  ;  7  East.,  345  ;  25  Wend..  32  ;  10  Wend.,  25  ;  15  Barb.,  607. 

»  Per  Lee,  Ch.  J.,  Sayre,  37,  ''  2  R.  S.,  197,  §  5;  13  Wend.,  649, 

'  Str.,  897.  655,  note  ;  3  How.,  1G4. 

'  2  Lev.,  200.  »  2  Salk.,  699,  701 ;  2  M.  &  S.,  598  ;  5 

'  1  Lid.,  31  ;  3  Steph.  N.  P.,  2321,     Abb.,  241. 

2322.  •  5  Halst.,  292. 

•  4  Cow.,  73.  "  16  Johns.,  61. 


196  ADMINISTEATION  OF  CIVIL  JUSTICE. 

Where  the  writ  is  directed  to  a  corporation  or  a  select  body, 
it  must  be  directed  to  them  in  their  ])voper  name  and  also 
in  their  proper  capacity,  and  the  application  shouhl  state  in 
what  capacity  it  is  intended  the  writ  should  be  directed  to 
them.^  Thus,  the  direction  of  a  writ  to  the  members  of  a 
town  council,  should  be  by  their  cor])orate  name,  for  that 
is  their  legal  description  as  long  as  they  continue  to  have 
a  corj)orate  existence.* 

Sow  served. 

The  alternative  mandamus  may  be  served  by  showing 
the  original  and  delivering  a  copy,^  and  the  party  to  whom 
it  is  directed  must  make  his  return  without  the  writ.^  It 
should  be  served  at  least  eight  days  before  the  time  for 
showing  cause  specified  in  the  writ,^  and  may  be  served 
either  in  term  time  or  vacation,^  unless  it  be  an  application 
to  compel  an  inferior  court  to  try  a  cause,  when  the  service 
should  be  in  term  time."^ 

When  it  may  he  amended. 

The  writ  being  in  the  nature  of  a  declaration,  it  may  be 
amended  at  any  time  before  it  is  returnable.''  But  amend- 
ments will  not  be  allowed  after  the  return,  especially  where 
the  return  has  been  traversed.^  The  statute,  however, 
provides  that  the  court  in  which  any  action  shall  be  pend- 
ing, shall  have  power  to  amend  any  process,  pleading  or 
proceeding  in  such  action,  either  in  form  or  in  substance, 
for  the  furtherance  of  justice,^''  and  this  provision  is  made 
applicable  to  all  writs  of  mandamus  and  prohibition." 

3£otion  to  quash  or  set  aside  the  icrit. 

The  defendant,  in  analogy  to  the  old  practice  in  actions 
at  law,  after  the  service  of  the  alternative  writ,  may  appear 
and  move  the  court  to  quash  or  set  the  same  aside.^*  This 
motion  is  in  the  nature  of  a  demurrer,^^  and  should  be  made 
before  the  return  to  the  writ,  unless  the  motion  to  quash 
is  based  \x\)on  a  defect  iu  substance,  in  which  case  it  may 


■  2  Johns.  Gas.,  217,  65  note ;  3  Barn.  &     '  1  How.,  1 14. 

Ores..  GS5.  *  6  Mod..  133. 

»  2  M.  &  S..  598;  1  Ld.  Raym.,  559.          '  4  Term  R.,  689;  5  Abb.,  241. 

'  1  Johns.,  64.  "  2  R.  S.,  424,  §  1. 

*  4  Cow-..  73.  "  Idem,  §  10. 
»  3  How.,  164.  "  4  Cow.,  73. 

*  4  Cow.,  73;  1  Johns.,  64.  "  7  How.,  290. 


OF  MAin)AI^IUS  AJSD  PEOHIBITIOX.  197 

be  taken  advantage  of  at  any  time  before  the  peremptory 
mandamus  is  awarded.^  This  is  further  in  analogy  with 
the  old  practice ;  where  the  motion  to  quash  or  set  aside 
is  for  some  formal  or  technical  defect  in  the  writ,  it  is  in 
the  nature  of  a  special  demurrer,  and  must  be  taken  advan- 
tage of  before  pleading  to  the  action ;  and  where  the  motion 
is  based  upon  some  defect  in  substance,  it  is  in  the  nature 
of  a  general  demurrer;  and  such  defect  might  be  taken 
advantage  of  at  any  time  before  judgment,  &c. 

Where  the  defendant  desires  further  time  to  make  his 
return,  he  must  apply  to  the  supreme  court  or  to  a  justice 
thereof  for  an  order  enlarging  the  time.^  This  the  court 
has  power  to  grant,  the  same  as  in  personal  actions.  It  is 
merely  asking  for  further  time  to  answer  the  complaint  or 
writ. 

If  the  defendants  fail  to  make  a  return  according  to  the 
command  of  the  writ,  the  statute  provides^  that  they  shall 
be  proceeded  against  as  provided  in  the  act  regulating  pro- 
ceedings, as  for  contempts  to  enforce  civil  remedies.*  This 
branch  of  the  i^roceediug  differs  somewhat  from  the  ordi- 
nary proceeding  in  an  action.  If  the  defendant  is  in 
default  of  an  answer,  his  default  is  taken,  and  judgment 
entered  thereon.  But  in  these  proceedings,  there  is  some- 
thing usually  required  to  be  done ;  and  the  proceeding  is 
designed  to  put  the  defendant  in  motion;  therefore,  if  he 
fails  or  neglects  to  obey  the  mandate  of  the  writ,  he  is  to 
be  proceeded  against  as  for  a  contempt. 

The  attachment  in  such  cases  is  granted  against  those 
particular  persons  who  refuse  to  obey  the  writ,  even  when 
the  mandamus  was  directed  to  a  corporation  ;  and  when  it 
is  directed  against  several  defendants  in  their  natural 
capacity,  the  attachment  will  issue  against  them  all,  if 
they  neglect  or  refuse  to  obey  the  writ.  The  members 
of  a  town  council,  or  of  the  common  council,  may  render 
themselves  personally  liable  as  for  contempt,  by  their 
efforts  to  evade  the  force  of  the  writ.^ 


'  10  Wend.,  31 ;  2  N.  Y.,  492 ;  5  Burr.,  »  2  R.  S.,  58G,  §  34. 

2740.  *  2  R.  S.,  534;  2  N.  Y.  S.  at  L.,  552. 

»  2  R.  S.,  587,  §  59;  2  N.  Y.  S.  at  L.,  »  10  Mod.,  56;   1  Duer,  451,  512;  9  N. 

608;  3  How.,  164;  4  Cow.,  73;  Su-  Y.,  263. 

preme  Court,  Rule  22. 


198  ADMTNTSTEATION  OF  CIVIL  JUSTICE. 


The  return  of  the  lorit. 

As  the  writ  corresponds  to  the  comj^laint  or  declaration 
of  the  plaintiff,  so  the  return  also  corresponds  to  the 
defendant's  answer  or  plea;  and  hence,  it  should  deny 
the  facts  stated  in  the  writ  qh  which  the  claim  of  the 
relator  is  founded,  or  it  should  show  that  they  are  not 
sufficient  in  law  to  sustain  his  claim  ;  or,  admitting  the 
facts,  it  may  show  other  facts  sufficient  in  law  to  defeat 
the  claim  of  the  relator.^  But  if  the  return  set  forth  mat- 
ters of  evidence  from  which  certain  facts  may  be  inferred, 
instead  of  positively  and  distinctly  alleging  the  facts  relied 
upon  in  answer  to  the  mandamus,  it  will  be  bad  on  demur- 
rer.^ The  same  general  rules  api^licable  to  a  plea  or  answer, 
are  also  applicable  to  the  defendant's  return.  Thus,  it 
should  be  positive  and  certain  f  must  not  be  argumenta- 
tive,^ nor  evasive.* 

Any  matter  of  which  the  defendant  proposes  to  avail 
himself,  in  making  his  defense,  should  be  set  forth  with 
all  the  particularity  essential  to  an  answer  or  i)lea.  Thus, 
when  the  objection  to  the  validity  of  a  law  springs  out  of 
ihe  failure  of  the  legislature  to  comply  with  the  provisions 
of  the  constitution,  which  is  not  apparent  upon  the  act 
itself,  it  should  be  distinctly  set  forth  in  the  return.  A 
mere  assertion  in  the  return,  that  the  law  was  oppressive 
and  unconstitutional  in  its  passage,  is  not  enough.^  Such 
allegation  is  not  a  fact,  but  merely  an  argument  or  an  aver- 
ment of  a  principle  of  law.^ 

Several  matters  may  be  set  up  in  the  return,  provided 
they  are  essential  to  a  legal  and  valid  defense  ;  but  such 
matters  must  be  consistent  with  each  other,  for  if  other- 
wise, the  whole  will  be  quashed,  as  the  court  will  not 
know  which  to  believe.'^  But  if  such  independent  matters 
are  not  inconsistent  with  each  other,  some  being  good  and 
others  bad,  the  return  may  be  quashed  as  to  the  bad, 
and  the  relator  may  be  put  to  plead  as  to  the  remaining.' 

The  defendant  is  only  called  upon  to  answer  the  allega- 
tions of  the  writ,  in  his  return ;  and  if  he  goes  beyond, 
and  his  return  contains  any  thing  more  than  a  full  answer 


'10  Wend.,  25;  5  Term  R.,  •?4;  IG  *  8  N- T.,  317. 

Barb.,  52 ;  8  How.,  358  ;  11  Id.,  89.  "  11  How.,  89. 

'  2  N.  Y.,  496 ;  1  Ld.  Ravm.,  559.  '  2  Salk.,  436. 

*  5  Term  R.,  66;  6  Mod.,"309.  •  2  Term,  456;  5  Id.,  66 ;  6  Id,  493. 

*  1  Barb.,  34. 


OF  MANDAMUS  AND  PROHIBITION.  199 

to  the  substantial  averments  in  the  writ,  such  matter  may  be 
rejected  as  surplusage,  or  be  stricken  out  on  motion  ;  such 
surphisage  does  not  aftbrd  proper  ground  for  a  demurrer.^ 

It  is  held  that  the  i)leadiugs  in  mandamus  are  the  same 
as  under  the  former  system  of  pleading,  and  that  the  rules 
prescribed  by  the  Code  have  no  application  to  them.^ 

The  return,  like  an  answer,  may  be  amended  by  permis- 
sion of  the  court,  and  x)robably  upon  similar  terms  f  cleri- 
cal mistakes  can  be  amended  after  the  return  is  filed. 

The  return  beiug  defective  upon  its  face,  may  be  quashed 
by  the  court,  upon  the  motion  of  the  relator,*  either  in 
whole  or  in  part.^  The  motion  to  quash  the  return  is  also 
in  the  nature  of  a  demurrer  to  the  plea,  under  the  old 
practice.'^  So,  also,  where  the  return  contains  anything 
more  than  a  full  answer  to  the  substantial  averments  of 
the  writ,  such  additional  matter  becomes  surplusage,  and 
may  be  rejected.'^  The  same  general  rules  apply  to  the 
answer  as  to  the  writ,  for  they  are  to  each  other  as 
declaration  and  plea.  Hence  the  reply  must  not  be  argu- 
mentative, double,  &c.^  But  it  is  held  that  the  court  will 
not  permit  subordinate  tribunals  to  be  harrassed  with 
special  demurrers  to  returns  made  by  them.  If  the  relator 
is  dissatisfied  with  a  return  made,  conceiving  it  to  be 
evasive,  or  the  construction  of  any  matter  alleged  in  it  to 
be  of  doubtful  character,  upon  suggestion  of  its  insufii- 
ciency,  a  further  or  suijplementary  return  will  be  ordered, 
and  thus  the  rights  of  the  party  be  effectually  protected, 
as  if  permitted  to  demur  specially.^ 

Under  the  statute^"  the  party  prosecuting  the  writ  may 
demur,  or  plead  to  all  or  any  of  the  material  allegations 
or  facts  contained  in  the  return,  to  which  also  the  defend- 
ant is  to  reply,  take  issue  or  demur.  Thus  the  issue  is 
to  be  formed,  and  the  like  proceedings  are  to  be  had  for  the 
determination  thereof,  as  in  actions  on  the  case  for  a  false 
return.'" 

The  practice  under  these  provisions  is  laid  down  by 
Justice  Sutherland  thus:  "Although  these  statutes  con- 
template formal  written  pleadings,  in  the  ordinary  mode 
of  conducting  suits,  the  practice  of  the  court  is  virtually 

'  2  N.  Y.,  490 ;  11  How.,  89.  '  2  N.  Y.,  496. 

»  16  How.,  4;  6  Id.,  179;  Codo,  §  471.  '*See  11  How.,  89;  8  Id.,  358;  Code, 

»  7  Term  R.,  699.  §  471 ;  16  How.,  4;  6  Id.,  179. 

*  Cowp.,  413  ;  2  Salk.,  436.  "  Per  Sutherland,  J.,  9  Wend,,  429, 
»  2  Term  R.,  456.  "  2  R.  S.,  686,  §  55. 

•  See  9  Wend.,  429. 


200  ADMINISTRATION  OF  CIVH;  JUSTICE. 

to  allow  pleadings  ora  tenus :  that  is,  the  relator  is  per- 
mitted to  discuss  the  return,  and  to  ask  for  a  peremptory 
mandamus,  and  whilst  he  has  not  put  in  a,  formal  demurrer, 
the  case  is  considered  as  embraced  in  the  description  of 
non-enumerated  business,  and  is  heard  as  such.  But  if  a 
formal  demurrer  is  interposed,  it  becomes  enumerated 
business,  aud  can  be  heard  only  at  the  stated  term.  It  is 
optional  with  the  relator  whether  it  shall  be  considered 
enumerated  or  non-enumerated  business,  unless  the  court 
specially  direct  formal  pleadings  to  be  interposed.  jSTo 
injury  can  result  to  the  defendant  in  consequence  of  this 
privilege  allowed  the  relator ;  for  if  he  wishes  to  carry  up 
the  cause  for  review,  the  court  permits  him,  after  its  deci- 
sion to  make  up  and  file  formal  pleadings,  so  that  the 
record  may  be  made  iip ;  which  i)rivilege,  however,  is  not 
granted  to  the  relator,  who  has  chosen  to  ask  for  a  peremp- 
tory mandamus,  without  formally  demurring.  If  dissat- 
isfied with  the  decision  of  the  court,  he  cannot  carry 
up  the  cause  for  review."^  In  this  latter  respect,  how 
ever,  the  practice  is  now  different.  The  relator  can  now 
have  the  case  reviewed  by  apjyeal,  although  he  has  not 
formally  demurred  to  the  return.^ 

After  the  return  to  the  writ  of  mandamus  has  been  filed, 
the  party  making  the  return  may  serve  notice  upon  the 
relator  requiring  him  to  demur,  or  plead  thereto  within 
twenty  days  after  such  service ;  and  if  no  plea  or  demurrer 
to  such  return  be  interposed  within  that  time,  either  party 
may  notice  the  matter  for  a  hearing  at  the  next  or  any 
subsequent  special  term  at  which  the  same  may,  according 
to  the  practice  of  the  court,  be  heard  as  a  non-enumerated 
motion,  and  the  same  may  be  heard  or  disx)osed  of  on  the 
said  return.'  A  failure  to  demur  or  plead  to  the  return 
by  the  relator,  admits  the  return  to  be  true,  and  the  court 
can  decide  thereon  as  upon  a  demurrer.^ 

Plea  and  demurrer.  The  relator  may  demur  or  plead  to 
any  or  all  the  material  facts  contained  in  the  return.^  He 
may  demur  to  part  of  the  return  and  plead  to  the  rest ; 
but  cannot  both  demur  and  plead  to  the  same  allegations.^ 
The  defendant  may  reply,  take  issue  or  demur  to  the 
defendant's  plea. 


'6  Wend,   559,    560;    see,   also,  10    *  See  6  Wend.,  559;    7   Id.,  475;   10 

Wend.,  632.  Id..  632;  1  Barb.,  379. 

'  L.  1854,  592  ;  19  Barb.,  657.  "  16  Johns.,  61. 

•  Supreme  Comt,  Rule  51,  1858.  «  4  Wend.,  38. 


OF  MAITDAMUS  AKD  PROHIBITION.  201 


Issues. 

The  issues  raised  in  the  proceedings  are  either  issues  of 
law  or  of  fact,  as  in  actions  at  law,  and  they  are  tried  in 
the  same  manner.  Issues  of  law  are  tried  by  the  court, 
and  are  raised  by  demurrer  to  the  writ,  or  to  the  return, 
or  to  some  subsequent  pleading  awarded  in  such  proceed- 
ings. These  issues  of  law  are  raised  on  motions  to  quash 
or  set  aside  the  writ  or  return,  &c.  And  so,  likewise,  an 
application  for  a  peremptory  mandamus  without  formally 
demurring  to  the  return,  is  equivalent  to  a  demurrer.  In 
such  case  the  facts  set  forth  in  the  return  are  admitted 
to  be  true,  and  it  becomes  a  question  of  law  whether  a 
peremptory  mandamus  should  be  awarded.^ 

But  where  a  question  of  fact  is  raised  by  the  writ  and 
return  thereto,  or  by  the  pleadings  in  the  case,  the  cause 
must  go  to  the  circuit  to  be  tried  by  a  jury.  And  such 
issues  of  fact  are  to  be  tried  in  the  county  within  which 
the  material  facts  contained  in  the  writ  are  alleged  to  have 
taken  place.^  The  i)reparation  of  the  case,  and  the  mode 
of  trial,  are  the  same  as  in  personal  actions.  In  general 
the  relator  holds  the  affirmative,  and,  therefore,  the  return 
is  taken  to  be  true  until  falsified  upon  the  trial ;  although 
allegations  in  the  return,  which  are  denied  by  the  relator 
in  his  reply,  and  not  proved,  are  not  to  be  taken  as  true 
on  the  trial.' 

If,  upon  the  issue,  the  finding  is  in  favor  of  the 
relator,  whether  it  be  an  issue  of  fac^  or  of  law,  or  if 
judgment  be  given  by  default,  the  relator  recovers  his 
damages  and  costs,  the  same  as  in  an  action  on  the  case 
for  a  false  return,*  which  damages  are  assessed  by  a  jury 
on  the  trial  of  issues  of  fact  joined,  or  are  assessed  on  a 
writ  of  inquiry,  where  the  judgment  is  by  default  or  on 
demurrer.^  The  judgment  is  entered  on  the  determination 
of  the  court,  or  the  verdict  of  the  jury,  as  in  personal 
actions.  But  judgment  for  costs,  or  for  damages  and 
costs,  in  such  cases,  can  be  entered  only  by  the  special 
order  of  the  court  ;'^  and  execution  issues  thereon  as  in 


personal  actions. 


'  7  Wend.,  475 ;  6  Id.,  559.  *  2  R.  S.,  587,  §  57. 

»  2  R.  S.,  586,  §  56.  *  2  Biirr.  Pr.,  179. 

•12  How.,  51.  '3  How.,  379. 


II. 


202  ADMINISTRATION  OF  CIVIL  JUSTICE. 


Tlie  finding  and  judgment. 

The  order  for  a  peremptory  mandamns  corresponds  to  a 
judgment  upon  the  findings  of  the  court  or  jury.  If  a 
verdict  on  the  trial  of  an  issue  of  fact  be  found  for  the 
relator,  or  if  judgment  be  rendered  for  him  upon  demurrer 
or  by  default,  the  statute  requires  a  peremptory  manda- 
mus to  be  granted  to  him  without  delay.^  Notwithstand- 
ing the  language  of  the  statute,  it  has  been  held  that  the 
relator,  to  obtain  a  peremptory  mandamus,  must  move 
the  court  on  notice  to  the  opposite  party,  after  the  facts 
of  the  case  are  settled,  either  by  default  or  verdict,  &c., 
when  the  court  can,  in  view  of  the  whole  case,  pronounce 
upon  the  rights  of  the  respective  parties.^  The  peremp- 
tory mandamus  is  the  determination  or  judgment  which 
the  relator  seeks  as  the  ultimate  of  the  proceeding  before 
the  court,  and  the  motion  therefor  is  upon  the  principle 
of  motion  for  judgment. 

It  is  optional  with  the  relator,  unless  the  court  specially 
direct  the  interposition  of  formal  pleadings,  to  consider 
the  motion  for  a  peremptory  mandamus  as  enumerated  or 
non-enumerated  business.  If  he  prefer  to  bring  it  on  as  a 
mere  motion,  there  being  no  formal  issue  in  the  case,  it 
will  be  heard  as  a  non-enumerated  motion.^  But  if  there 
is  a  demurrer  to  the  return,  or  if  an  issue  of  law  is  raised 
upon  the  pleadings,  the  case  will  be  put  down  upon  the 
calendar  as  an  enumerated  motion.*  But  in  either  case,  it 
should  be  noticed  for  special  term.^ 

Co8t8.  In  these  proceedings  the  court  awards  costs  in 
its  discretion,^  as  the  equity  of  each  case  may  require ;'' 
and  they  will  not  be  entered  against  the  party  except  by 
special  order.^  AVhen  allowed,  costs  will  be  given  at  the 
rate  allowed  for  similar  services  in  civil  actions.^ 

Enforcement  of  the  writ. 

Obedience  to  the  peremptory  writ  is  enforced  by  attach- 
ment. This  is  issued  upon  affidavits  showing  the  service 
of  the  peremptory  writ  upon  the  proper  parties,  and  that 


'  2  R.  S.,  587,  §  57.  •  L.  1833,  395,  §  6  ;  L.  1854,  692,  §  3; 

=  3  How.,  380.  19  Barb.,  657. 

'  6  Wend.,  559,  Rule  51.  ''  1  Barb.,  557. 

*  Idem.  *  3  How.,  280. 

'  Rule  40,  10  How.,  353,  »  L.  1854,  cb.  271,  §  3. 


OF  MANDAMUS  A^TD  PEOHIBITION.  203 

it  has  not  been  obeyed.^  A  defendant  tvLo  has  prevented 
the  service  of  such  writ  by  keeping  out  of  the  way,  may 
be  ordered  to  show  cause.^  The  statute  directs  a  fine  in 
certain  cases.^ 

Appeal. 

Since  1854,  the  decisions  of  the  court  in  these  cases  are 
reviewed  by  appeal.*  Either  party  may  have  the  decision 
or  order  of  the  court  granting  or  refusing  a  mandamus, 
reviewing  on  appeal,  in  all  cases,  whether  the  order  is 
made  on  the  original  apphcation  for  the  peremptory  man- 
damus in  the  first  instance,  or  on  the  application  for  the 
peremptory  writ  on  the  return  of  an  order  to  show  cause, 
or  on  the  application  for  the  peremptory  writ  after  a  return 
to  the  alternative  writ  has  been  put  in,  without  formally 
demurring  or  pleading  to  such  return.*  It  may  also  be 
taken  from  the  final  judgment  after  issue  joined,  &c.,  on 
the  return  of  the  alternative  mandamus.^ 

The  practice  on  appeal  in  these  proceedings  is,  in  most 
respects,  like  the  usual  practice  on  appeal,  from  orders  and 
judgments  in  civil  actions ;  that  is,  it  is  like  such  practice 
so  far  as  the  same  may  be  applicable.  The  appeal  is  taken 
from  the  order  or  judgment  of  the  court  at  special  term 
to  the  general  term.^  The  act  of  1854  refers  especially  to 
sections  of  the  Code  327,  329,  330  and  332,  as  applicable 
in  cases  of  appeal  in  special  proceedings.  If  on  an  appeal 
a  stay  of  proceedings  is  desired,  an  application  to  the  court 
or  to  a  justice  thereof  for  such  an  order  must  be  made, 
which  order  will  fix  the  terms  as  to  security,  &c.,  which  is 
not  to  exceed  the  amount  required  on  an  appeal  to  the 
court  of  appeals.'' 

An  appeal  may  likewise  be  taken  to  the  court  of  appeals 
from  the  order  or  judgment  at  general  term,'^  and  the  prac- 
tice in  such  cases  is  substantially  the  same  as  appeals 
from  judgment  and  orders  in  civil  actions. 

JProhibition. 

The  writ  of  prohibition  is  issued  to  prohibit  a  court  and 
party  to  whom  it  is  directed,  from  proceeding  in  a  suit  or 


'  2  Cai.,  97.  '  11  N.  Y.,  563. 

»  See  12  Mod.,  312.  •  L.  1854,  592. 

»  2  R.  S.,  587,  §  GO.  '  Code,  §  11. 
*  L.  1854,  592 ;  19  Barb.,  657. 


204  ADMINTSTRATION  OF  CIYIL  JUSTICE. 

matter  depending  before  such  court,  upon  the  suggestion 
that  the  cognizance  of  such  suit  or  matter  does  not  belong 
to  it.  The  olfice  of  a  prohibition  is  to  prevent  courts  from 
going  bej'ond  their  jurisdiction  in  the  exercise  of  judicial 
and  not  ministerial  power,^  and  should  not  be  issued  where 
there  are  other  perfectly  adequate  remedies.^ 

This  writ  can  be  issued  only  by  the  supreme  court,^  and 
is  to  be  issued  upon  affidavits,  by  motion,  in  the  same 
manner  as  writs  of  mandamus.  The  superior  court  of  the 
city  of  Buffalo,  has,  within  that  city,  concurrent  jurisdic- 
tion with  the  supreme  court  to  issue  such  writ.^  It  is 
granted  or  denied  in  the  discretion  of  the  court.* 

The  writ  of  prohibition  does  not  lie  to  a  ministerial 
officer,  to  stay  the  execution  of  process  in  his  hauds,^  nor 
does  it  lie  to  prohibit  the  exercise  of  ministerial  power  on 
the  part  of  a  judicial  officer.  Thus,  it  does  not  lie  to  pro- 
hibit the  issuing  of  an  execution,  which  is  a  ministerial 
power.^ 

Where  the  court  has  erred  in  the  decision  of  a  matter 
within  its  jurisdiction,  the  remedy  is  by  appeal,  error,  or 
certiorari,  as  the  case  may  be ;  and  not  by  prohibition. "^ 

The  writ  when  issued,  is  directed  to  the  court  and  party, 
commanding  that  they  desist  and  refrain  from  any  farther 
XJroceedings  in  the  suit  or  matter  specified  therein,  until 
the  next  term  of  the  said  supreme  court,  and  the  further 
order  of  the  said  court  thereon,  and  that  they  then  show 
cause,  why  they  should  not  be  absolutely  restrained  from 
any  further  proceedings  in  such  suit  or  matter.'  When 
served,  it  stays  both  the  court  and  the  party  from  proceed- 
ing in  the  matter  or  suit.^ 

The  writ  is  served  upon  the  court  and  party  to  whom  it 
is  directed,  in  the  same  manner  as  a  writ  of  mandamus  f 
and  the  return  thereto  is  also  to  be  made  by  the  court  in 
the  like  manner ;  which  return  may  be  enforced  by  attach- 
ment.^ 

After  the  return  to  the  writ  has  been  filed,  the  party 
making  the  return  may  serve  a  notice  upon  the  relator, 
requiring  him  to  demur  or  plead  thereto  within  twenty 
days  after  such  service,^  and  if  no  plea  or  demurrer  is 

'  2  nm,  367;   1  Id.,  201;   19  Wend.,     ^  1  Hill,  195;  7  Wend.,  486. 

154.  «  2  Hill,  367. 

"2  R.  S.,  587;  §G1;  2  N.  Y.,  S.  at  '  2  R.  S..  587,  §  61;  2  N.  Y.  S.  atL.,  609. 

L.,  609.  '  7  Wend..  518;  19  Id.,  154. 

»  1  L.,  1857,  752.  °  2  R.  S.,  587 ;  §  62,  ante. 

'  2  Hill,  367.  "  Supreme  Court,  Rule  51,  1858. 


OF  MANDAMUS  AND  PROHIBITION.  205 

interposed  within  the  time  required,  either  party  may 
notice  the  matter  for  hearing  at  the  next  or  any  subse- 
quent special  term  at  which  the  same,  according  to  tlie 
l)ractice  of  the  court,  may  be  heard,  as  a  non-enumerated 
motion,  and  will  be  heard  and  disposed  of  on  the  said  return.^ 

If  the  party  to  whom  such  writ  of  prohibition  is  directed, 
bj'  an  instrument  in  writing  signed  by  such  party,  and 
annexed  to  the  return  of  such  writ,  adopt  the  return, 
and  rely  upon  the  matters  therein  contained  as  a  sufficient 
cause  why  such  court  should  not  be  restrained  as  men- 
tioned in  the  writ,  such  party  is  thereupon  to  be  deemed 
defendant  in  such  matter ;  and  the  person  prosecuting 
such  writ  may  then  reply,  take  issue,  or  demur  to  the  mat- 
ters so  relied  upon,  and  the  like  proceedings  are  then  to 
be  had  for  the  trial  of  issues  of  law  or  fact  joined  between 
the  parties,  and  for  the  rendering  of  judgment  thereupon, 
as  in  personal  actions.^ 

But  when  the  party  to  whom  such  writ  of  prohibition  is 
directed  does  not  adopt  such  return,  then  the  party  prose- 
cuting brings  on  the  argument  of  such  return,  as  upon 
rule  to  show  cause ;  and  he  may,  by  his  own  affidavit  and 
other  proofs,  controvert  the  matters  therein  set  forth. 

Judgment.  The  court,  after  hearing  the  proofs  and  alle- 
gations of  the  parties,  renders  its  judgment,  either  that  a 
irroliibition  cibsolute,  restraining  the  said  court  and  party 
from  ijroceeding  in  such  suit  or  matter,  do  issue,  or  that 
a  writ  of  consultation^  authorizing  the  court  and  party  to 
jH'Oceed  in  the  suit  or  matter  in  question,  be  issued.^ 

So  also,  where  the  party  has  adopted  the  return  of  the 
writ  as  before  stated,  if  the  court  renders  judgment  for 
the  party  prosecuting,  a  prohibition  absolute  issues  ;  but 
if  for  the  defendant,  a  writ  of  consultation  is  awarded.* 

Amendments  of  the  writ  and  of  the  pleadings  may  be 
made,  by  leave  of  the  court,  as  in  the  proceedings  by  man- 
damus.^ Costs  are  also  awarded,  in  the  discretion  of  the 
court,*^  and  are  to  be  at  the  rate  allowed  for  similar  services 
in  civil  actions." 

Appeals  may  be  taken  from  the  decision  of  the  court  at 
special  term,  to  the  general  term,  the  same  as  in  manda- 
mus ;  also  from  the  general  term  to  the  court  of  appeals.'' 


'  Supreme  Court,  Rule  51,  1858.  '  2  R.  S.,  425,  §  10. 

'  2  R.  S.,  587,  §  62.  '  Laws  1854,  592,  §  3. 

'  Idem,  §  04.  'Code.    §    11;    Laws    1854,    592;    19 

*  Idsm,  §  65.  '  Barb ,  658. 


206  ADMDflSTRATION  OF  CIYIL  JUSTICE. 

CHAPTER  XIV. 

HABEAS  COEPUS  AKD  CEETIOKAKI. 

General  observations. 

The  writ  of  habeas  corj)us  is  issued  to  inquire  into  the 
grounds  upon  which  any  person  is  restrained  of  his  liberty ; 
and  when  it  is  found  that  the  restraint  is  illegal,  to  deliver 
him  from  such  restraint.^  The  statute  provides  that  every 
person  committed,  detained,  confined,  or  restrained  of  his 
liberty,  within  this  state,  for  any  criminal  or  supposed 
criminal  matter,  or  under  any  pretense  whatsoever,  except 
in  certain  cases  therein  specified,  may  prosecute  a  writ  of 
habeas  corpus,  or  of  certiorari,  according  to  the  provisions 
therein  contained,  to  inquire  into  the  cause  of  such  impri- 
sonment.^ 

The  persons  not  entitled  to  the  writ  are :  1.  Persons 
committed  or  detained  by  virtue  of  any  process  issued  by 
any  court  of  the  United  States,  or  any  judge  thereof,  in  cases 
where  such  courts  or  judges  have  exclusive  jurisdiction 
under  the  laws  of  the  United  States,  or  where  exclusive 
jurisdiction  has  been  acquired  by  the  commencement  of 
suit  in  such  courts  ;  2.  Persons  committed  or  detained  by 
virtue  of  the  final  judgment  or  decree  of  any  competent 
tribunal  of  civil  or  criminal  jurisdiction,  or  by  virtue  of 
any  execution  issued  upon  any  such  judgment  or  decree.^ 

in  general,  this  writ  to  inquire  into  the  cause  of  deten- 
tion, in  all  cases,  whether  under  the  statute  or  at  the  com- 
mon law,  except  when  issued  by  the  supreme  court  or  one 
of  the  justices  thereof,  can  only  be  allowed  for  the  purpose 
of  delivering  the  person  for  whose  relief  it  is  asked,  from 
illegal  imprisonment  or  restraint.  The  only  exception  is 
in  the  case  of  an  infant  of  such  tender  years,  as  to  be  inca- 
pable of  making  a  choice  for  itself.* 

While  the  writ  of  habeas  corpus  is  prerogative  in  its 
character,  it  is,  nevertheless,  a  writ  demandable  as  of 
right,  on  a  proper  foundation  being  made  out  by  proof,^ 

'  3  Hill,  647,  note.  *  14  N.  T.,  575,  aflf'g  22  Barb.,  179, 188; 

'  2  R.  S.,  563,  §  21;  2  N.  Y.  S.  at  L.,  1  Duer.  709,  &c. 

584.  *  3  Hill,  649,  note. 

•  Idem,  §  22. 


HABEAS  CORPUS  AND  CERTIOEAEI.        207 

and  it  lies  in  all  cases  of  imprisonment  by  commitment, 
detention,  confinement  or  restraint,  for  whatever  canse 
or  under  whatever  pretense  ;  in  which  respect  the  statute 
and  common  law  writs  are  the  same.^ 

This  writ  frequentlj^  issues  for  purposes  connected  with 
the  administration  of  justice,  as  for  the  purpose  of  bring- 
ing the  body  of  a  prisoner  before  the  court  to  testify,  or  to 
be  arraigned  upon  an  indictment,  or  for  the  purposes  of 
exonerating  his  bail  from  liability,^  &c. 

Althongh  the  nature  of  the  writ  is,  like  other  preroga- 
tive writs,  appellate  in  its  character,  in  that  it  looks  to  the 
case  only  as  it  is  presented  upon  the  return  thereof,  yet  it 
will  not  lie  to  review  the  judgment  or  decision  of  a  court 
or  officer  having  competent  jurisdiction.^  Thus,  where  the 
licibeas  corpus  showed  that  the  person  sought  to  be  relieved 
was  detained  under  a  commitment  by  a  magistrate  for 
contempt  as  a  witness,  in  refusing  to  answer  questions 
relating  to  a  criminal  complaint,  it  was  held  that  the  offi- 
cer before  whom  the  writ  was  returnable  had  no  right  to 
inquire  into  the  truth  of  the  facts  adjudged  by  the  com- 
mitting magistrate,  nor  whether  the  questions  put  to  the 
witness  were  proper,  nor  whether  he  was  privileged  from 
answering  the  same.*  The  officer  may  inquire  whether  the 
process  of  commitment  is  valid  on  its  face ;  or,  whether 
any  thing  has  arisen  since  the  commitment  for  i)utting  an 
end  to  the  imprisonment ;  or,  whether  the  committing 
magistrate  had  jurisdiction,  &c.,*  even  though  the  neces- 
sary jurisdictional  facts  are  recited  in  the  commitment  ;* 
but  he  cannot  rejudge  the  judgment  of  the  committing 
court  or  magistrate.^ 

The  writ  of  liaheas  corjyus  is  not  the  proper  remedy  by 
which  to  try  the  right  to  the  guardianship  of  an  infant,'^ 
nor  to  determine  the  sufficiency  of  an  affidavit  upon  which 
an  attachment  for  a  contempt  is  issued."  The  attachment 
iu  such  case  is  issued,  in  the  discretion  of  the  court,  upon 
due  proof,  and  upon  Avhich  the  court  is  to  decide  as  to  its 
sufficiency.''  When  the  court  has  jurisdiction,  both  of  the 
person  and  of  the  subject  matter,  the  officer  issuing  the  writ 
of  liahms  corpus  cannot,  in  general,  look  beyond  what 
appears  upon  the  face  of  the  commitment." 

'  2  R.  S.,   564,  §§  21,  23;    3  Bl.  Com.,     »  Per  Bronson,  J.,  5  Hill,  1G8,  ciling  3 

128-138.  Wend.,  220. 

'  7  Wend.,  132.  •  8  Paige.  47. 

*  5  Hill,  164;  22  Barb.,  178.  '  2  Sandf.,  724. 

*  5  Hill,  164;  2  R.  S.,  667,  §  42.  *  See  1  Hill,  159 ;  2  Sandf.,  729. 


208  ADMINISTRATION  OF  CIVIL  JUSTICE. 


The  application  for  the  writ,  to  whom  and  how  made. 

The  application  for  sucli  writ  is  by  i)etition,  signed  either 
by  the  party  for  whose  relief  it  is  intended,  or  by  some 
person  in  his  behalf,  either  to  the  supreme  court,*  during 
its  sitting  ;  or,  during  any  term  or  vacation  of  such  court, 
to  the  chancellor,  or  any  one  of  the  justices  of  the  supreme 
court,  or  any  ofiicer  who  may  be  authorized  to  perform 
the  duties  of  a  justice  of  the  supreme  court  at  chambers,! 
being  or  residing  within  the  county  where  the  prisoner 
is  detained ;  or,  if  there  be  no  such  officer  within  such 
county,  or  if  he  be  absent,  or  for  any  cause  be  incapable 
of  acting,  or  having  refused  to  grant  such  writ,  then  to 
some  ofiicer  having  such  authority  residing  in  any  adjoin- 
ing county.^ 

And  whenever  an  application  for  any  such  writ  is  made 
to  an  officer  not  residing  within  the  county  where  the 
prisoner  is  detained,  he  must  require  proof,  by  the  oath  of 
the  party  applying,  or  by  other  sufficient  evidence,  that 
there  is  no  officer  in  such  county  authorized  to  grant  such 
writ,  or,  if  there  is  such  an  officer,  that  he  is  absent,  or  has 
refused  to  grant  the  writ,  or  for  some  cause,  to  be  specially 
set  forth,  is  incapable  of  acting.^ 

The  restriction  that  the  application  for  such  writ  must 
be  to  an  officer  residing  within  the  county  where  the 
prisoner  is  detained,  applies  only  to  that  class  of  officers 
designated  as  "  authorized  to  perform  the  duties  of  a  justice 
of  the  supreme  court  at  chambers."^  Where  the  applica- 
tion is  made  to  the  supreme  court  or  to  any  one  of  its  jus- 
tices, it  may  be  made  in  any  county  in  the  state,  without 

*  The  like  authority  is  also  given  to  the  superior  court  of  the  city  of  Buffalo,  and 
to  each  of  the  justices  thereof,  to  issue  the  writ  within  the  city  of  Buffalo  (Laws 
1857,  vol.  1,  752);  also  to  the  city  judge  of  the  city  of  Brooklyn  (Laws  1849.  174-, 
§  26);  and  to  the  city  judge  of  the  city  of  Sevf  York,  within  that  city.  (Laws 
1850,  388;   6  Abb.,  139,  146.) 

f  The  officers  authorized  to  perform  the  duties  of  justices  of  the  supreme  court 
at  chambers,  under  the  Revised  Statutes,  were  supreme  court  commissioners  (2  R. 
S.,  280).  which  office  was  abohslied  by  the  Constitution  of  1846  (art.  14,  §  8);  the 
judges  of  the  superior  court  of  the  city  of  New  York  (2  R.  S.,  281,  §  33) ;  the  judges 
of  the  court  of  common  pleas  for  the  city  and  county  of  New  York  (Laws  1847, 
281,  §  7);  the  recorders  of  cities  and  judges  of  the  county  courts,  being  of  the 
degree  of  counselor  at  law.  (2  R.  S.,  281,  §  32;  see  also  3  How.,  32.  40,  172.) 
Tlie  authority  of  the  cliancellor  to  award  a  habeas  corpus  was  transferred  to  the 
justices  of  the  supreme  court  by  the  judiciary  act  and  the  Constitution  of  1846. 


'  2  R.  S.,  563,  §  23  ;  2  N.  Y.  S.  at  L.,  581.     '  8  Abb.,  190  ;  3  How.,  39. 
"2  R.  S.,  564,  §  24;  8  Abb.,  183. 


HABEAS  CORPUS  AND  CERTIORAKI.  209 

reference  to  the  place  of  the  detention  of  the  prisoner  ;^ 
and  when  the  application  is  thus  made  in  a  conuty  other 
than  the  one  where  the  prisoner  is  detained,  such  conrt  or 
judge,  in  its  discretion,  may  make  such  writ  returnable 
before  some  officer  authorized  to  issue  such  writ,  in  the 
county  where  the  prisoner  is  detained.'  But  the  city  judge 
of  th^  city  of  Brooklyn  has  no  power  to  issue  such  writ 
running  into  another  county,  without  proof  that  there  is 
in  such  count}',  no  officer  authorized  to  grant  the  writ.^ 

The  statute  has  provided  what,  in  substance,  the  petition 
shall  contain.  It  must  state :  1.  That  the  person  in  whose 
behalf  the  writ  is  applied  for,  is  imprisoned  or  restrained 
in  his  liberty ;  the  officer  or  person  by  whom  he  is  confined 
or  restrained,  and  the  place  where ;  naming  both  parties 
when  their  names  are  known,  or  describing  them  if  they 
are  not  known  ;  2.  That  such  person  is  not  committed  or 
detained  by  virtue  of  any  process  issued,  or  judgment 
or  decree  rendered,  by  any  competent  tribunal  of  civil  or 
criminal  jurisdiction,  or  by  virtue  of  anj"  execution  issued 
upon  any  such  judgment  or  decree;  3.  It  must  also  set 
forth,  according  to  the  best  knowledge  and  belief  of  the 
applicant,  the  cause  or  pretense  of  such  confinement  or 
restraint ;  4.  The  statute  also  imposes  upon  the  supreme 
court,  and  its  several  justices,  the  duty  of  issuing  the 
writ  of  habeas  corpus  in  certain  cases,  even  though  no 
petition  has  been  presented  or  application  has  been  made 
for  such  writ.  This  is  required  when  they  shall  have 
evidence,  from  any  judicial  proceeding  had  before  them, 
that  any  person  within  the  county  in  which  such  court 
or  officer  shall  be,  is  illegally  confined  and  restrained  of  his 
liberty.' 

Form  of  the  writ.  The  statute  also  prescribes  the  form 
of  the  writ  to  be  used.  It  is  issued  in  the  name  of  the 
people  of  the  State  of  New  York,  and  is  directed  to  the 
person  or  officer  by  whom  the  prisoner  is  detained,  com- 
manding him  to  have  the  body  of  the  prisoner,  together 
with  the  time  and  cause  of  such  imprisonment  and  deten- 
tion, by  whatsoever  name  the  prisoner  shall  be  called  or 
charged,  before  the  justices  of  the  supreme  court,  or  some 
officer,  &c.,  as  the  case  may  be,  forthwith,  or  at  a  specified 
time  to  be  named  therein,  &c.'*    The  writ  may  also  be 


»  8  Abb.,  190  ;  3  How.,  39;  Laws  1837,  '  Idem,  565,  §  30. 

230;  4  N.  Y.  S.  at  L.,  681.  ♦  2  R   S.,  565,  §  27;  see  form  in  the 
•8  Abb.,  190.  statute. 

II.— 27 


210  ADMINISTRATION  OF  CIVIL  JUSTICE. 

directed  to  any  person  who  is  charged  with  participating 
in  the  illegal  detention  of  the  prisoner,  though  he  may 
not  be  the  immediate  actor.^  The  writ  should  state  the 
jjlace  of  the  return  as  well  as  the  officer  or  court  before 
whom  it  is  returnable.^ 

If  the  confinement  or  restraint  is  by  virtue  of  any  war- 
rant, order  or  process,  a  copy  thereof  must  be  annexed ; 
or  it  must  be  averred,  that  by  reason  of  such  prisoner's 
being  removed  or  concealed  before  the  application,  a 
demand  of  such  copy  could  not  be  made,  or  that  such 
demand  was  made,  and  that  legal  fees  therefor  were 
tendered  to  the  officer  or  jjerson  having  such  prisoner  in 
his  custody,  and  that  such  copy  was  refused.  5.  If  the 
imprisonment  be  alleged  to  be  illegal,  the  petition  must 
also  state  in  what  the  alleged  illegality  consists ;  6.  It  must 
si3ecify  whether  the  party  api>lies  for  the  writ  of  habeas 
corpus,  or  for  the  writ  of  certiorari;  .7  And  it  must  be  veri- 
fied by  the  oath  of  the  party  making  the  application.^ 

Wben  the  object  of  the  writ  is  to  determine  the  rightful 
custody  and  disposition  of  an  infant,  the  application  should 
be  made  to  the  supreme  court  or  to  one  of  its  justices. 
The  application,  in  such  case,  is  at  the  common  law,  and 
not  under  the  statute;  unless  the  proceeding  is  upon  the 
application  of  the  husband  or  wife,  made  under  the  stat- 
ute, representing  that  the  wife  or  her  husband  has  attached 
him  or  herself  to  the  society  of  shakers,  and  detains  a 
child  of  the  marriage  between  them,  &c.*  A  judge  of 
the  superior  court  of  the  city  of  New  York  is  not  clothed 
with  the  discretionary  powers  of  a  judge  in  equity,  in 
relation  to  the  custody  and  disposition  of  infants.^  Nor 
is  a  recorder  of  a  city,  a  county  judge,  or  a  judge  of  the 
court  of  common  pleas  of  the  city  and  county  of  New 
York;  nor  is  a  justice  of  the  supreme  court,  in  respect  to 
the  statutory  writ  of  Jiaheas  corpus,  returnable  before  him 
at  chambers,  clothed  with  such  discretionary  powers.  In 
such  cases,  the  petition  must  be  addressed  to  the  supreme 
court  in  equity,  and  then  it  may  be  presented  to  a  justice 
thereof,  at  chambers,  out  of  term,  and  such  justice  would 
have  power  to  entertain  such  proceeding.^ 

The  statute  also  provides  that  any  court  or  officer 
empowered  to  grant  any  writ  applied  for  under  that  act, 

•  See  3  HiU,  406.  *  2  R.  S.,  149,  §  4. 

'  2  R.  S.,  574,  §  15.  '  1  Duer,  709  ;  8  How.,  288. 

■»  2  R.  S.,  564,  §  25;  2  N.  Y.  S.  atL.,  585.     "  22  Barb.,  179  ;  14  N.  Y.,  575. 


HABEAS  CORPUS  AND  CERTIOEART.        211 

to  whom  siicli  petition  shall  be  presented,  shall  grant  the 
writ  without  delay;  unless  it  appear  from  the  petition 
itself,  or  from  the  documents  annexed,  that  the  party 
applying-  therefor  is,  by  the  provisions  of  the  statute, 
prohibited  from  prosecuting  such  writ.^  And  if  any  court 
or  officer,  thus  authorized  to  issue  such  writ,  refuse  to 
issue  the  same,  when  legally  applied  for,  every  member 
of  such  court  assenting  to  such  refusal,  and  every  such 
'officer,  severally,  forfeits  to  the  party  aggrieved  the  sura 
of  one  thousand  dollars.^ 

Seal  of  what  court.  The  statute  also  provides  that  the 
writ  must  be  under  the  seal  of  the  court  by  which  it  is 
awarded;  and  when  awarded  hy  an  officer  out  of  court, 
then,  under  the  seal  of  the  court  before  which  the  writ  is 
made  returnable;  and,  if  made  returnable  before  some 
body  other  than  a  court  of  record,  or  before  an  officer  out 
of  court,  then  it  is  to  be  under  the  seal  of  the  supreme 
courc.^ 

The  indorsement.  The  writ  must  also  be  indorsed  with 
a  certificate  that  the  same  has  been  allowed,  together 
with  the  date  of  its  allowance.  When  the  writ  is  awarded 
by  the  court,  the  indorsement  must  be  signed  by  the  chief 
justice  or  other  presiding  officer  of  such  court;  if  awarded 
by  an  officer  out  of  court,  the  indorsement  must  be  signed 
by  such  officer;  and  whenever  the  writ  is  required  in  an 
action  or  matter  to  which  the  people  of  the  state  are 
parties,  on  the  application  of  the  attorney-general,  or 
district  attorney  having  charge  of  the  same,  the  fact  that 
it  was  issued  upon  such  application  must  be  stated  in  their 
indorsement  of  the  allowance.''  So,  when  the  charges  for 
bringing  up  the  prisoner  are  to  be  paid  by  the  petitioner, 
the  indorsement  of  the  allowance  must  also  specify  the 
amount  of  such  charges  to  be  paid.^  The  officer  bringing 
up  the  prisoner  may  require  his  charges  therefor  to  be 
I)aid  by  the  i)etitioner,  if  so  allowed  by  the  court  or  officer 
granting  the  writ.  Such  allowance  may  be  had,  when  the 
writ  is  to  be  directed  to  any  other  than  a  sheriff',  coroner, 
constable  or  marshal." 

This  writ  may  be  amended,  on  motion,  like  other  pro- 
cesses, in  the  discretion  of  the  court.'' 


•  2  R.  S.,  5G4,  §  2G.  '  Iilem,  §  84. 

'  Idem.  565,  S5  :51.  •  2  R.  8.,  575,  §  84. 

•  2  R.  S.,  574,"§  74 ;  2  N.  Y.  S.  at  L.,  594.  '  3  Hill,  G57,  note,  &c. 
♦Idem,  §  77. 


212  ADMINISTRATION  OP  CIVIL  JUSTICE. 

The  statute,  having  given  the  general  form  of  the  writ, 
provides  fiirtlier,  that  a  defect  of  form,  in  the  writ,  will 
not  excuse  a  disobedience  thereof.  That  the  person  hav- 
ing the  custody  of  the  prisoner  may  be  designated  either 
by  his  name  of  ofltice,  if  he  have  any,  or  by  his  name;  or, 
if  both  such  names  are  unknown  or  uncertain,  then  he 
may  be  described  by  an  assumed  appellation;  and  that 
any  one  who  may  be  served  with  the  writ  shall  be  deemed 
the  person  to  whom  it  is  directed,  although  it  be  directed 
to  such  person  by  a  wrong  name  or  description,  or  to 
another  person.  So,  also,  if  the  person  directed  to  be 
produced  be  designated  by  name;  or  if  his  name  be 
uncertain  or  unknown,  he  may  be  described  in  any  other 
way,  so  as  to  designate  the  person  intended.^ 

The  form  of  a  writ  of  certiorari,  to  be  issued  in  pursu- 
ance of  these  provisions,  is  also  given  in  the  statute.* 

ITow  and  by  whom  the  writ  to  he  served. 

The  statute  provides  that  the  writ  of  habeas  corpus  can 
only  be  served  by  an  elector  of  some  county  within  the 
state;  and  to  be  deemed  complete  service,  the  party  serv- 
ing the  same  must  tender  to  the  person  in  whose  custody 
the  prisoner  may  be,  if  such  person  be  sheriff,  coroner, 
constable  or  marshal,  the  fees  allowed  by  law  for  bringing 
up  such  prisoner;  nor,  unless  he  shall  give  bond  to  the 
sheriff,  coroner,  &c.,  as  the  case  may  be,  in  a  penalty 
double  the  amount  of  the  sum  for  which  such  ])risoner 
may  be  detained,  if  he  be  detained  for  any  specific  sum 
of  juoney;  and,  if  not,  then  in  the  penalty  of  one  thou- 
sand dollars,  conditioned  that  such  person  will  pay  the 
charges  of  carrying  back  such  prisoner,  if  he  shall  be 
remanded,  and  that  such  prisoner  will  not  escape  by  the 
way,  either  in  going  to,  or  returning  from,  the  place  to 
which  he  is  to  be  taken.'  These  provisions,  however,  do 
not  apply  to  any  case  where  the  writ  is  sued  out  by  the 
attorney-general  or  district  attorney.* 

The  writ  is  served  by  delivering  the  same  to  the  person 
to  whom  it  is  directed,  and  if  he  cannot  be  found,  it  may 
be  served  by  being  left  at  the  jail  or  other  place  in  which 
the  prisoner  may  be  confined,  with  any  under  officer,  or 
other  person  of  proper  age,  having  charge,  for  the  time, 

»  2  R.  S.,  565,  §  29.  »  2  R  S.,  574,  §  78 ;  2  N.  T.  S.  at  L.,  596. 

•  2  R.  S.,  565,  §  28,  *  Idem,  §  79. 


HABEAS  COBPUS  AND  CERTIOKAM.       213 

of  such  prisoner.^  And  if  the  person  upon  whom  it  ought 
to  be  served,  conceal  himself  or  refuse  admittance  to  the 
party  attempting  to  serve  the  same,  it  may  then  be  served 
by  affixing  the  same  in  some  conspicuous  place,  on  the 
outside,  either  of  his  dwelUng  house  or  of  the  place  where 
the  party  is  confined.^ 

After  such  writ  has  been  thus  served  upon  any  sheriff, 
coroner,  constable  or  marshal,  whether  the  same  was 
directed  to  him  or  not,  and  upon  the  payment  or  tender 
of  the  charges  allowed  by  law,  and  the  delivery  or  ten- 
der of  the  bond  before  described,  it  becomes  his  duty  to 
obey  and  return  the  same,  according  to  the  exigency 
thereof;  and  so,  likewise,  if  it  be  served  upon  any  other 
person  having  the  custody  of  the  individual  for  whose 
benefit  it  was  granted,  it  becomes  the  duty  of  such  person 
to  obey  and  execute  such  writ  according  to  tlie  command 
thereof,  without  requiring  any  bond,  or  the  payment  of 
any  charges,  unless  the  same  had  been  previously  required 
by  the  officer  granting  the  writ.^ 

It  is  hkewise  the  duty  of  the  person  upon  whom  the 
writ  of  certiorari,  issued  in  pursuance  of  these  provisions, 
shall  have  been  served,  and  upon  the  payment  or  tender 
of  fees  allowed  by  law  for  making  a  return  to  such  writ, 
and  for  copying  the  warrant  or  other  process  to  be  annexed 
thereto,  to  obey  and  return  the  same  according  to  the 
exigency  thereof. 

Proceedings  in  case  of  disobedience. 

If  the  party  served  refuses  or  neglects  to  obey  the  same, 
by  producing  the  party  named  in  such  writ  of  habeas  cor- 
pus, and  making  a  full  and  explicit  return  thereto  within 
the  time  therein  required,  and  show  no  sufficient  excuse 
for  such  neglect  or  refusal,  it  then  becomes  the  duty  of 
the  court  or  officer  before  whom  such  writ  is  made  returna- 
ble, upon  due  proof  of  the  service  thereof,  forthwith  to 
issue  an  attachment  against  such  person,  directed  to  the 
sheriflF  of  any  county  within  the  state,  commanding  him 
forthwith  to  apprehend  such  person,  and  bring  him  imme- 
diately before  such  court  or  officer. 

And  on  such  person  being  so  brought  before  the  court, 
&c.,  he  shall  be  committed  to  close  custody,  in  the  jail  of 

»  2  R.  S.,  574,  §  78;  2  N.  Y.  S.  at  L.,     '  2  R.  S.,  675,  §  81. 
595,  §  80.  » Idem,  g  82. 


214  ADMINISTRATION   OF   CIVIL  JUSTICE. 

the  county  in  which  such  court  or  officer  shall  be,  without 
being  allowed  the  liberties  thereof  until  he  make  return  to 
Buch  writ,  and  comply  with  any  order  that  may  be  made 
by  such  court,  &c.,  in  relation  to  the  person  for  whose 
relief  such  writ  was  issued.^  If  the  sheriff  has  been  guilty 
of  such  neglect,  the  attachment  may  be  directed  to  the 
coroner  or  such  other  person  as  may  be  designated  therein, 
who  will  have  full  power  to  execute  the  same,  and  the 
sheriff  may  be  committed  to  the  jail  of  any  county  except 
his  own.^  In  addition  to  the  attachment  thus  directed,  a 
precept  may  likewise  be  issued  at  the  same  time,  to  the 
same  officer  or  other  person,  commanding  him  to  bring 
forthwith  before  the  court  or  officer  the  party  for  whose 
benefit  the  habeas  corpus  was  issued,  and  such  person 
shall  remain  in  the  custody  of  the  person  holding  such 
precept,  until  he  be  discharged,  bailed  or  remanded,  as 
the  court  or  officer  shall  direct.^  In  the  execution  of  the 
attachment  or  precept,  the  power  of  the  county  may  be 
called  to  the  aid  of  the  person  executing  it.* 

The  return  of  such  writ. 

Such  writ  is  made  returnable  at  a  day  certain,  named 
therein,  or  forthwith,  as  the  case  may  require.^  If  the 
writ  be  made  returnable  at  a  certain  day,  the  writ  must 
be  returned  and  be  produced  at  the  time  and  place  speci- 
fied therein;  and  if  it  be  returnable  forthwith,  and  the 
place  be  within  twenty  miles  of  the  place  of  service, 
the  return  must  be  made  and  the  prisoner  be  produced 
within  twenty-four  hours,  and  the  like  time  shall  be  al- 
lowed for  every  additional  twenty  miles.^ 

The  person  upon  whom  the  writ  is  served  must  state  in 
his  return,  plainly  and  unequivocally :  1.  Whether  he  has 
or  has  not  the  party  in  his  custody  or  under  his  power  or 
restraint;  2.  If  he  has,  then  the  authority  and  true  cause 
of  such  imprisonment  or  restraint,  setting  forth  the  same 
at  large;  3.  If  the  party  be  detained  by  virtue  of  any 
writ,  warrant  or  other  written  authority,  a  copy  thereof 
must  be  annexed  to  the  return,  and  the  original  be  pro- 
duced and  exhibited  on  the  return  of  the  writ,  to  the  court 
or  officer  before  whom  the  same  is  returnable ;  4.  If  the 


'  2  R.  S.,  566,  §  34.  »  2  R.  S.,  574,  §  75. 

'Idem,  §  35.  •Idem,  575,  §  86;  2  N.  Y.  S.   at  L., 

»  Idem,  §  36.  596. 

*  Idem,  §  37. 


HABEAS  CORPUS  AND  CERTIORARI.       215 

person  upon  whom  sucb  writ  shall  have  been  served,  shall 
have  had  the  party  in  his  power  or  custody,  or  under  his 
restraint,  at  any  time  prior  or  subsequent  to  the  date  of 
the  writ,  but  has  transferred  such  custody  or  restraint  to 
another,  the  return  must  state  particularly  to  whom,  at 
what  time,  for  what  cause,  and  by  what  authority  such 
transfer  took  place ;  and  the  return  must  be  signed  by  the 
person  making-  the  same,  and  except  where  such  person 
shall  be  a  sworn  public  officer,  and  makes  his  return  in  his 
oflScial  capacity,  it  must  be  verified  by  his  oath.^ 

Besides  this  return  upon  the  writ,  the  body  of  the  person 
in  custody  must  be  produced  according  to  the  command 
of  the  writ  except  in  case  of  sickness,  &c.^  And  whenever, 
from  sickness  or  infirmity  of  the  person  directed  to  be 
produced  by  such  writ,  such  person  cannot  be  produced 
before  the  court  without  danger,  the  party  in  whose  cus- 
tody he  is  may  state  that  fact  in  his  return  and  verify  the 
same  by  his  oath ;  and  the  court,  being  satisfied  of  the  truth 
of  such  allegation,  will  then  proceed  to  examine  and  dis- 
pose of  the  cause  the  same  as  upon  certiorari?  Otherwise, 
to  excuse  the  non-production  of  the  body,  the  return  must 
show  that  the  prisoner  is  neither  in  the  defendant's  custody 
or  within  his  possession  or  power.* 

The  return  may  be  amended  by  leave  of  the  court  at 
any  time  before  the  decision  is  made,  and  it  may  be 
amended  either  in  its  substance  or  its  form,^  and  it  should 
be  amended  by  the  one  making  the  defective  return.^ 

Proceedings  after  the  return  of  the  wi-it. 

Notice  to  other  parties.  When  the  return  to  the  writ 
shows  that  the  party  is  in  custody  on  any  process  under 
which  any  other  person  has  an  interest  in  continuing  his 
imprisonment,  or  restraint,  no  order  will  be  made  for 
his  discharge  until  it  is  made  to  appear  that  the  party 
thus  interested,  or  his  attorney  has  had  hke  notice  of  the 
time  and  place  at  which  such  writ  was  made  returnable, 
as  is  required  to  be  given  of  special  motions  in  the 
supreme  court.^  Notice  must  be  given  even  where  the 
party  does  not  reside  in  the  county  where  the  party  sought 
to  be  relieved  resides,  or  where  the  proceeding  is  to  be 

•  2  R.  S.,  5G6,  §  32.  *  10  Mod.,  102. 

*  Idem,  §§  33,  49.  •  3  Hill,  657,  note. 

•  Idem,  §  49.  '2  R.  S.,  509,  §  4G ;    see  1  vol.  429, 

♦  10  Johns.,  328;  3  Hill,  657.  430;  Code,  §§  410,  412  and  413. 


216  ADMINISTRATION  Oi?*  CIVIL  JUSTICE. 

had.  The  party  interested  is  entitled  to  notice  of  the 
proceedings,  without  regard  to  his  place  of  residence,^ 
although  copies  of  the  petition  and  other  papers  need  not 
be  served  upon  him.*  Such  interested  parties  residing  in 
other  counties,  notice  may  be  served  upon  them  by  mail, 
when  the  communication  is  regular  between  them.  In 
such  case,  the  service  is  made  by  enclosing  the  notice  in  a 
wrapper,  and  putting  the  same  in  the  post-office,  properly 
directed,  and  paying  the  postage  thereon.^ 

Where  the  party  is  detained  upon  a  criminal  accusation, 
the  district  attorney  must  also  be  notified  of  the  time  and 
place  at  which  such  writ  is  to  be  returned.  The  notice 
must  be  given  to  the  district  attorney  of  the  county  in 
which  the  prisoner  is  detained.' 

The  court  or  officer  before  whom  the  party  is  brought 
on  habeas  corpus,  must  proceed  immediately  after  the 
return  thereof  to  examine  into  the  facts  contained  in  such 
return,  and  into  the  cause  of  the  confinement  or  restraint 
of  such  party,  whether  the  same  shall  have  been  upon 
commitment  for  any  criminal  or  supposed  criminal  matter 
or  not.^  If  the  facts  are  not  denied,  the  law  of  the  case 
is  alone  inquired  iuto.^  But  if  issue  is  taken  upon  mate- 
rial facts  in  the  return,  or  if  other  facts  are  alleged  to 
show  the  imprisonment  to  be  illegal,  or  that  the  party  is 
entitled  to  his  discharge,  the  court  or  officer  proceeds 
at  once  to  hear  the  allegations  and  proofs,  and  disposes 
of  the  party  according  to  the  justice  of  the  case."' 

If  no  legal  cause  be  shown  for  such  imprisonment  or 
restraint,  or  for  the  continuation  of  the  same,  the  party 
must  be  discharged  from  the  custody  or  restraint  under 
which  he  is  held.^  But  if  it  shall  appear  that  he  is 
detained  in  custody  either,  by  virtue  of  process  issued  by 
any  court  or  judge  of  the  United  States,  in  a  cause  where 
such  judge  or  court  has  exclusive  jurisdiction  ;  or  by  virtue 
of  the  final  judgment  or  decree  of  any  competent  court  of 
civil  or  criminal  jurisdiction,  or  of  any  execution  issued 
upon  such  judgment  or  decree ;  or  for  any  contempt 
specially  and  plainly  charged  in  the  commitment,  by  some 
court,  officer  or  body  having  authority  to  commit  for  the 
contempt  so  charged ;  and  that  the  time  during  which 

•  14  Wcnd.,  48.  »  2  R.  S.,  267,  §  38. 

»  12  Wend.,  229.  •  3  Hill,  658;  note  pi.,  28;  4  Barb.,  41. 

»  Code,  §  410.  •'  2  R.  S.,  569,  §  48. 

*2R.  S.,  569,  §47,  Laws  1837,  231;     'Idem,   567,  §  39;    15  Barb.,  153;  1 

5  Hill,  169;   10  Paige,  611.  Duer,  709. 


HABEAS  CORPUS  AND  CERTIORAEI.  217 

such  party  may  be  legally  detained,  has  not  expired,  it 
becomes  the  duty  of  the  court  or  oihcer  making  such 
examination  forthwith  to  remand  such  i)arty.^ 

If  it  appear  on  the  return,  that  the  prisoner  is  in  cus- 
tody by  virtue  of  civil  process  from  any  court  legally 
constituted,  or  issued  by  any  oflflcer  in  the  course  of  judi- 
cial proceedings  before  him,  authorized  by  law,  such 
prisoner  can  be  discharged  only  in  one  of  the  following 
cases :  1.  Where  the  jurisdiction  of  such  court  or  officer 
has  been  exceeded,  either  as  to  matter,  ijlace,  sum  or  per- 
son ;  or,  2.  Where,  the  original  imprisonment  being  lawful, 
by  some  act,  omision  or  event  which  has  subsequently 
taken  place,  the  party  has  become  entitled  to  be  dis- 
charged; or,  3.  Where  the  process  is  defective,  in  some 
matter  of  substance  required  by  law,  rendering  the  same 
void ;  or,  4.  Where  the  process,  though  in  proper  form,  has 
been  issued  in  a  case  not  allowed  by  law ;  or,  5.  Where 
the  person  having  the  custody  of  the  prisoner  under  such 
process,  is  not  the  person  empowered  by  law  to  detain 
him ;  or,  6.  When  the  process  is  not  authorized  by  any 
judgment,  order  or  decree  of  any  court,  nor  by  any  pro- 
vision of  law.^ 

But  on  the  return  of  such  writ,  no  court  or  officer  has 
any  power  to  inquire  into  the  legality  or  justice  of  any 
process,  judgment,  decree  or  execution,  specified  in  the 
twenty-second  section  of  the  haheas  corpus  act,^  nor  into 
the  justice  or  propriety  of  any  commitment  for  a  contempt 
made  by  any  court,  officer  or  body,  according  to  law,  and 
charged  in  such  commitment.* 

But  if,  on  examination,  it  appear  that  the  party  has 
been  legally  committed  for  any  criminal  offense,  or  if,  by 
the  testimony  offered  with  the  return  of  the  writ,  or  upon 
the  hearing  thereof,  he  appear  to  be  guilty  of  such  offense, 
although  the  commitment  be  irregular,  such  party  will  not 
be  entitled  to  a  discharge ;  but  he  may  be  let  to  bail,  if 
the  offense  be  bailable  and  good  bail  be  offered,  otherwise 
he  is  to  be  remanded.^  Being  remanded,  he  is  idaced 
under  the  restraint  from  which  he  was  taken,  unless  the 
person  holding  him  under  such  restraint  was  not  entitled 

»  2  R.  S.,  567,  §  40 ;  see  29  Barb.,  625 ;  '  See  2  R.  S.,  563. 

5  Hill,  167;   19  Paige,  284;  8  How.,  'Idem,  §42;    15  Barb.,  153;  5  IIUl, 

480 ;  see  alflo  2  R.  S.,  44,  §  15.  167 ;  see  2  R.  S.,  44,  §  15. 

•  2  R.  S.,  568,  §  41 ;  see  29  Barb.,  78;  » Idem,  §43;  26  Barb.,  80;  1  Sandf., 

11   Abb.,   147;  19  How.,  477;  15  702. 

lb.,  211. 

n.— 28 


218  ADMINISTRATION  OF  CIVIL  JUSTICE. 

to  do  SO,  in  which  case  he  is  to  be  committed  to  the  cus- 
tody of  such  person  or  officer  as  by  law  is  entitled  thereto.* 
During  the  examination  and  before  judgment  is  given 
upon  the  return,  the  prisoner  remains  in  the  custody  of 
the  sheriff,  or  other  officer  or  person,  as  the  court  shall 
direct.^  The  officer  issuing  the  writ  of  habeas  corpus  is 
not  authorized  to  permit  the  prisoner  to  go  at  large  until 
his  decision  of  the  case  upon  the  return.^  If  the  prisoner 
is  imprisoned  on  execution,  the  sheriff  will  be  liable  for  an 
escape  if  he  voluntarily  suffers  him  to  go  at  large  without 
restraint.^  It  is  held,  however,  that  the  habeas  corpus 
relieves  the  prisoner  temporarily  from  the  duress  of  im- 
prisonment under  the  execution,  and  that  he  is  not  then 
enduring  the  restraint  created  thereby  with  the  view  of 
coercing  payment/  Therefore  the  sheriff  is  not  bound  to 
keep  the  prisoner  always  in  sight  with  the  same  strictness 
as  before.* 

What  may  he  inquired  into^  on  the  return  of  the  writ,  by  the  court 
or  officer  hearing  the  same. 

When  it  appears,  by  the  return,  that  the  prisoner  is 
detained  by  virtue  of  any  civil  process  from  any  court, 
legally  constituted,  or  issued  by  any  officer  in  the  course 
of  judicial  proceedings  before  him,  authorized  by  law,  and 
the  process  is  valid  upon  its  face,  the  presumption  will  be 
in  favor  of  the  legality  of  such  imprisonment ;  and  the 
burden  of  impeaching  its  legality  will  be  thrown  upon 
the  prisoner.  But  he  is  at  liberty  to  impeach  it,  by  show- 
ing want  of  jurisdiction  in  the  court  or  magistrate  from 
whence  it  emenated,^  or  that  the  court  had  exceeded  its 
jurisdiction  in  that  particular  case,  either  as  to  matter, 
place,  sum  or  person.^ 

The  process  may  also  be  attacked  by  showing  that  there 
has  been  some  act,  omission  or  event,  which  has  taken 
place  since  the  issuing  of  such  process,  which  entitles  the 
party  to  be  discharged  therefrom.'^  The  court  may  also 
inquire  whether  the  process,  though  proper  in  form,  was 
issued  in  a  case  legally  allowable,  or  whether  it  was  issued 
in  accordance  with  any  provision  of  law.*    Thus,  if  the 

»  2  R.  S.,  563,  §  44.  "2  R.  S.,  568,  §  41,  sub.  1. 

"  Idem,  §  45  ;   10  Paige,  610.  ''  Idem,  sub.  2  ;  1  Hill,  337;  25  Wend., 
»  10  Paige,  606.  483. 

*  18  Jolms.,  48;  7  Wend.,  132.  'Idem,   sub.  4,  6;  3  Hill,  661,  note  pL 
*3  Hill,   661,   note  pi.  31;    1  Sandf.,  31,  37. 

302;  2  Park.  Cr.  R.,  650. 


HABEAS  CORPUS  AND   CERTIORARI.  219 

defendant  has  been  taken  in  execution,  the  court  may 
inquire  whether  the  judgment  authorized  the  issuing  of 
an  execution  against  the  body  of  the  defendant ;  and 
if  not,  whether  there  is  record  evidence  sufficient  to  justify 
issuing  the  same.^  Thus,  where  an  execution  was  issued 
on  a  judgment  rendered  in  an  action  against  an  innkeeper, 
for  the  loss  of  the  baggage  of  his  guest,  and  the  defendant 
was  taken  in  execution,  the  court  held,  that  on  a  habeas  cor- 
pus issued  to  inquire  into  the  cause  of  the  caption  and  deten- 
tion of  defendant,  it  might  proceed  to  .inquire  wiiether  the 
process,  though  proper  in  form,  was  allowable  by  the  law  in 
the  case,  and  whether  it  was  authorized  b}^  a  judgment  or 
decree  of  a  court,  or  by  a  provision  of  law.^  And  where 
an  order  of  court  was  necessar}^  to  the  issuing  of  such 
execution,  such  order  should  also  appear,  or  at  least,  the 
facts  entitling  the  judgment  creditor  to  such  an  order 
should  appear  to  have  been  established.^ 

But,  on  such  return,  the  court  cannot  inquire  into  the 
legality  or  justice  of  any  process,  judgment,  decree  or 
execution  specified  in  the  twenty-second  section  of  the 
Iwheas  corims  act,^  nor  into  the  justice  or  propriety  of  any 
commitment  for  a  contemjjt  made  by  an}'  court,  officer  or 
body,  according  to  law,  and  charged  in  such  commitment.* 
Thus,  where  the  return  shows  that  the  prisoner  is  detained 
under  a  commitment  for  contempt  as  a  witness,  in  refusing 
to  answer  questions  relating  to  a  criminal  complaint,  the 
court  has  no  right  to  inquire  into  the  truth  of  the  facts 
adjudged  by  the  committing  magistrate,  nor  as  to  the  pro- 
priety of  the  questions  put  to  such  witness,  nor  as  to  his 
privilege  from  answering  the  same.^ 

But  the  question  of  the  jurisdiction  of  the  court  commit- 
ting, is  open  to  inquiry,  eveu  where  the  imprisonment  is 
under  the  asserted  authority  of  the  United  Htates.*^  And 
the  jurisdiction  may  be  inquired  into  where  the  commit- 
ment recites  the  necessary  facts  to  confer  jurisdiction.^ 

Under  the  statute,  the  party  brought  b(,'fore  the  court  on 
haheas  corpus,  is  permitted  to  deny  any  of  the  material  facts 
set  forth  in  the  return,  or  allege  any  fact  to  show  either 
that  his  imprisonment  or  detention  is  unlawful,  or  that  he 


'26  Barb.,  80;  15  How.,  211.  *''5Hill,  1G4;  11  How.,  418. 

*  26  Barb.,  80.  "  3  Hill,  G51,  note;   6  Johns.,  337. 
*2R.  S.,  563.                                               '5  Hill,    104,  168;    5   Abb.,  281;    15 

♦  Idem,  568,  §  42;  2  Park.  Cr.  R.,  650;  How.,  210. 

16  Barb.,  363. 


220  ADMINISTRATION  OF  CIVIL  JUSTICE. 

is  entitled  to  his  discliarg-e.^  It  is  held  that  this  provision 
of  the  statute  does  not  authorize  a  summary  trial  as  to  the 
guilt  or  innocence  of  the  prisoner;  but  only  to  enable  him 
by  evidence  aliunde  the  return,  to  dispute  the  facts  of  his 
detention  on  the  process  or  proceeding  set  forth ;  or  to 
impeach  it  for  lack  of  jurisdiction ;  or  to  show  that  by  some 
subsequent  event,  as  pardon,  a  reversal  of  judgment,  &c., 
it  had  ceased  to  be  a  lawful  detention.*  Accordingly, 
where  the  return  shows  the  party  to  be  detained  on  pro- 
cess, the  existence  and  validity  of  the  process  are  the  only 
material  facts,  within  this  provision  of  the  statute,  upon 
which  issue  can  be  taken.^  Where  the  process  is  sufficient 
to  protect  the  officer  and  party,  the  imprisonment  is  law- 
ful.^ 

In  x)roceedings  under  this  writ,  the  court  or  officer  is 
confined  to  questions  of  jurisdiction,  and  to  what  may  be 
called  prima  facie  appearance  of  the  proceedings,  without 
raising  any  collateral  issues,  or  impeachments  of  records, 
deeds  or  papers  fair  on  their  face.*  Thus,  where  a  pardon 
was  alleged  in  answer  to  a  return  on  a  habeas  corpus,  the 
court  cannot  go  behind  the  pardon  and  inquire  whether  it 
was  fraudulently  obtained.*  Bronson,  J.,  held  that  this 
provision  of  the  statute^  was  intended  mainlj'^  for  cases 
where  the  party  was  restrained  of  his  liberty  without  the 
authority  of  legal  process.'' 

Evidence.  It  is  held  that  the  prisoner  may  prove  the 
writings  or  document  on  which  his  arrest  is  founded,  and 
what  they  contain,  by  the  best  evidence  at  hand,  or  which 
he  can  procure  with  reasonable  diligence,  without  regard 
to  the  ordinary  rules  of  evidence.^  But  the  prisoner  him- 
self is  not  a  competent  witness  to  support  the  application 
for  his  discharge,^  and  the  Code  has  not  changed  the  rule 
in  this  respect.^ 

Sow  far  the  decision  on  habeas  corpus  is  conclusive  on  the  parties. 

Such  adjudication  is  conclusive  upon  the  same  parties  in 
all  future  controversies  relating  to  the  same  subject  matter, 
and  upon  the  same  state  of  facts.'"  But  where  circum- 
stances have  so  far  changed  as  to  affect  the  application  of 

»  2  R.  S.,  569,  §  48.  ,  •  5  Hill,  168. 

"  1  Hill,  337 ;  25  Wend.,  483,  570.  »  Hurd  on  Hab.  Cor.,  304 ;  1  Sandf.,  702. 

»  3  HUl,  658,  note.  «  5  Hill,  17. 

♦  8  How.,   488,  483;  see  1  Barb.,  340,  'Code,  §471;  1  Park  Cr.  R.,   169;  B 

also  193 ;  1  Park  Cr.  R,  187.  N.  Y.,  383. 

»  Code,  §  48,  "  25  Wend.,  64 ;  1  Park  Cr.  R.,  129. 


HABEAS  CORPUS  AND  CERTIORARI.        221 

the  principal  of  the  decision  to  the  particular  case,  the 
former  proceedings  would  not  be  a  bar  to  future  action  in 
respect  thereto.  Thus,  when  a  father  obtained  a  luibeas 
corpus  for  his  infant  child,  detained  by  its  mother,  and  the 
court  had  on  several  occasions  refused  to  interfere  with 
the  custody  of  the  mother  on  account  of  the  tender  ago 
of  the  clrtkl,  j^et  about  eighteen  months  afterwards  the 
court  held  that  the  former  proceedings  were  not  a  bar  to 
the  proceedings  then  being  had,  by  reason  of  the  greater 
age  of  the  child  at  that  time.  That  the  circumstances 
had  so  changed  by  reason  of  the  greater  age  of  the  child 
as  to  render  it  proper  that  the  father's  rights  should  be 
enforced,' 

The  question  whether  a  proceeding  by  luibeas  corpus  is 
barred  by  a  previous  proceeding,  is  to  be  determined  by 
the  identity  or  non-identity  of  the  questions  to  be  settled 
by  such  several  adjudications.^ 

CoJicealing  the  prisoner  with  intent  to  dude  the  service  of  the  writ^ 
penalty  therefor. 

The  statute  further  provides  that  any  one  having  in  his 
custody  or  under  his  power,  any  person,  who,  by  the 
provisions  of  the  statute,  would  be  entitled  to  a  writ  of 
habeas  corpus  or  certiorari,  to  inquire  into  the  cause  of  his 
detention,  who  shall,  with  intent  to  elude  the  service  of 
such  writ,  or  to  avoid  the  effect  thereof,  transfer  any  such 
prisoner  to  the  custody,  or  place  him  under  the  power  or 
control,  of  another,  or  conceal  him,  or  change  the  place  of 
his  confinement,  shall  be  deemed  guilty  of  a  misdemeanor. 
So,  likewise,  doing  the  same  in  respect  to  one  for  whose 
relief  a  writ  of  habeas  corpus  has  issued  is  made  a  misde- 
meanor; or,  any  one  aiding  or  assisting  another  in  doing 
the  same,  is  guilty  of  a  misdemeanor,  and,  on  conviction 
thereof,  is  to  be  punished  by  fine  or  imprisonment,  or 
both,  in  the  discretion  of  the  court ;  the  fine  not  to  exceed 
one  thousand  dollars,  and  the  imprisonment  not  to  ex- 
ceed six  months.^ 

So,  also,  any  officer,  or  other  person,  refusing  to  deliver 
a  coi)y  of  any  order,  warrant,  process  or  other  authority 
by  which  he  detains  any  person,  to  any  one  demanding 
Buch  copy,  and  tendering  the  fees  therefor,  forfeits  two 
hundred  and  fifty  dollars  to  the  person  so  detained.* 

•  3  Hill,  400.  *  2  R.  S.,  571 ;  §§  61,  62,  63  and  G4. 

»  See  3  Park  Cr.  R.,  631.  *  Idem,  §  72. 


222  ADMINISTRATION  OF  CIVIL  JUSTICE. 

Proceedings  in  respect  to  infants. 

In  cases  affecting  the  custody  of  infants,  it  is  held  that 
the  writ  of  habeas  cotpus  is  issued  at  common  law  and  not 
under  the  statute,  except  in  certain  cases  hereinafter  no- 
ticed.^ In  such  cases  the  court  acts  in  virtue  of  its  equity 
powers;  and  a  justice  of  the  court,  in  virtue  of  his  powers 
as  chancellor.^  The  authority  of  the  court  in  such  cases 
is  that  which  is  inherent  in  a  court  of  equity  and  is  derived 
from  the  common  law,  but  to  be  exercised  in  conformity 
to  the  provisions  of  the  statute  to  the  extent  they  are 
applicable.^ 

As  a  general  rule,  the  father  is  entitled  to  the  custody 
of  his  infant  children;  but  he  holds  this  right  subject  to 
the  supervision  of  equity,*  which  will  award  the  custody 
of  the  infant,  in  accordance  with  what  the  interest  and 
welfare  of  the  infant  demand.  As  between  the  father  and 
mother,  where  they  are  living  separate,  if  the  infant  be 
of  tender  years  and  the  mother  be  a  suitable  person  to 
have  the  custody  of  it,  it  will  be  awarded  to  the  mother.^ 
So  when  the  conduct  of  the  father  is  brutal,  or  where  his 
principles  and  habits  are  immoral,  he  may  forfeit  his  right 
to  the  custody  of  his  child.^  The  wish  of  the  child  will 
also  be  consulted  when  of  sufhcient  age  to  exercise  a 
liroper  choice.''  But  where  the  child  is  too  young  to  be 
capable  of  determining  for  itself,  the  court  will  determine 
for  it,  and  in  doing  so,  will  have  respect  to  the  future  wel- 
fare of  the  child.^  Where  the  child  is  old  enough  to 
understand  its  own  interest,  and  to  have  a  will  in  respect 
thereto,  the  court  will  see  that  it  is  left  free  to  exercise  its 
own  choice.^  The  course  and  practice  of  the  court  in 
these  cases  is  to  deliver  the  party  from  illegal  restraint; 
and,  if  competent  to  form  and  declare  an  election,  then  to 
allow  the  infant  to  go  where  or  with  whom  it  pleases ;  but 
if,  in  the  opinion  of  the  court,  the  infant  be  too  young  to 


»  1  Duer,  109,  '725;  22  Barb.,  179;  14  =  18  Wend.,  637;  19  Id.,  16;  24  Barb., 

N.  Y.,  575;  8  How.,  288.  521. 

*  1  Duer,  709;  8  How.,  288.  '  1  Sandf.,  672  ;  8  Johns.,  329;  8  How., 
'  14  N.  Y.,  575;  8  Paige,  47;  2  R.  S.,     288. 

573,  §  73.  »  6  Barb.,  366;  22  Id.,  178;  14  N.  Y., 
«  3  Hill,  400  ;  18  Wend.,  637 ;  24  Barb.,     575. 

521.  »  1  Sandf.,  672 ;  8  Johns.,  329 :  8  How. 
»  25  Wend.,  64.  288;  13  Johns.,  418;  3  Burr.,  1436. 


HABEAS  CORPUS  AND  CEETIOKAEI.       223 

form  a  judgment,  then  the  court  is  to  exercise  its  own 
judgment  in  that  respect.^ 

It  is  not  the  object  of  this  writ  to  try  the  right  of  parents 
or  guardians  to  the  custody  of  infants,  but  to  deliver  them 
from  unjust  imprisonment  and  illegal  restraint;  when, 
therefore,  the  infant  has  been  brought  before  the  court,  if 
of  proper  age,  it  has  been  consulted  in  relation  to  its 
wishes.^ 

Statutory  provisions  in  reject  thereto. 

It  is  provided  by  statute  that  when  the  husband  and 
wife  shall  live  in  a  state  of  separation,  without  being 
divorced,  and  shall  have  any  minor  child  of  the  marriage, 
the  wife,  being  an  inhabitant  of  this  state,  may  apply  to 
the  supreme  court  for  a  habeas  corpus  to  have  such  minor 
child  brought  before  such  court;  and  that  on  the  return 
of  such  writ,  the  court,  on  due  consideration,  may  award 
the  charge  and  custody  of  the  child  to  the  mother,  for 
such  time,  under  such  regulations  and  restrictions,  and 
with  such  provisions  and  directions,  as  the  case  may 
require.  Which  order  may  be  annulled,  varied  or  modi- 
fied by  the  said  court  at  any  time  thereafter.^ 

The  application  for  the  writ,  in  these  cases,  is  to  the 
supreme  court,*  and  is  addressed  to  its  discretion.  It 
will,  therefore,  be  necessary  for  the  applicant  to  disclose 
fully  all  the  facts  in  the  case,  that  the  court  may  see  the 
I)ropriety  of  granting  the  writ.  In  determining  the  ques- 
tion of  the  custody  of  the  infant,  the  court,  as  its  legal 
guardian  and  protector,  has  reference  to  its  interest  and 
welfare,  and  will  make  such  determination  in  the  premises 
as  its  interest  and  welfare  seem  to  demand.^  The  ability 
and  fitness  of  the  parent  to  provide  for  the  child  will  be 
examined  into,  in  determining  such  question.^ 

In  these  cases,  the  statute  authorizes  the  court  to  inter- 
fere only  on  the  application  of  the  wife.  This  is  upon  the 
hypothesis  that  the  husband  and  father  is  entitled  to  the 
custody  of  his  children.  But  the  father  has  not  an  abso- 
lute and  inalienable  right  to  such  custody.  He  may  be 
disqualified  from  exercising  it,  or  he  may,  by  misconduct, 

"  4  Johns.  Cli.  R.,  80;   see  1  Str.,  579;  *  24  Barb..  521. 

2  Ld.  Raym.,  1.333  ;   3  Burr.,  143G  ;  '  Iliird  on  llab.  Cor.,  504,  citing  5  Binn., 

1  Str.,  444;  3  P.  Wms.,  151 ;  llurd  520;   3  Burr.,  143G. 

on  Hab.  Cor.,  474.  •  2  How.,  CI ;  18  Wend.,  037  ;  8  Paige, 

»  8  Johns.,  328.  48. 

•  2  R.  S.,  148,  §§  1,  2,  3. 


224  ADMmiSTRATION  OF  C5IVIL  JUSTICE. 

&c.,  forfeit  Lis  right.  He  is  subject  to  control  hy  a  court 
of  equity,  which  has  a  supreme  supervision  in  these  mat- 
ters.^ 

Where  the  proceeding  is  a  contest  between  parents  in 
relation  to  the  future  charge  and  custody  of  their  children, 
and  not  for  the  purpose  of  delivering  the  infant  from  any 
improper  restraint,  it  is  not  necessary,  although  it  is  not 
improper,  for  the  court  to  consult  the  children  in  relation 
to  their  situation  and  wishes  for  the  future,  ^t^or  will  the 
court  interfere,  as  a  matter  of  course,  but  only  upon 
suflBcient  grounds.^ 

In  deciding  upon  the  question  of  the  infant's  custody, 
the  courts  are  governed  by  what  appears  to  be  for  the 
interest  of  the  infant,  and  not  the  superior  rights  or  claims 
thereto  of  the  respective  parents.  To  ascertain  what  is 
for  the  interest  of  the  infant,  the  court  will  look  into  all 
the  circumstances  of  the  case.  And  as  one  of  the  circum- 
stances, when  the  infant  is  of  suitable  age,  the  court  will 
consult  its  wishes,  not  because  the  infant  has  a  legal  right 
to  determine  the  question  by  its  will,  but  because  its  will 
is  one  of  the  circumstances  which  it  is  proper  for  the  court 
to  consider  in  determining  its  rightful  custody.' 

The  statute  also  provides  for  a  proceeding  by  luibeas 
corpus  by  either  a  husband  or  wife  under  the  following 
circumstances:  "Whenever  application  is  made  to  [the 
chancellor]  a  justice  of  the  supreme  court,  or  any  [circuit 
judge]  by  any  husband  or  wife,  representing  that  the  wife 
or  husband  has  attached  him  or  herself  to  the  society  of 
shakers,  and  detains  a  child  of  the  marriage  between  them, 
the  officer  must  inquire  into  the  circumstances;  and,  if 
satisfied,  by  due  proof  of  the  facts  represented,  he  must 
allow  a  writ  of  habeas  corpus  to  bring  such  child  before  him.* 

It  further  provides  that  in  case  the  child  is  concealed  or 
secreted  by  or  among  any  society  of  shakers,  the  officer 
may  also  issue  his  warrant  to  the  sheriff  of  the  proper 
county,  commanding  him,  in  the  daytime,  to  search  the 
dwelling  houses  and  other  buildings  of  the  society,  or 
the  dwelling  houses  and  buildings  of  any  of  the  members 
thereof,  or  of  any  other  buildings  specified  therein,  for 
such  child,  and  to  bring  him  before  such  officer.^    The 


»  25  Wend.,  64;  6  Rich.,  344;  13  Johns.,  *  2  R.  S.,   149,  §  4;  2  N.  Y.  S.  at  L, 
418;  1  P.  A.  Browii,  143  165. 

•  18  Wend.,  637,  per  BnoN30N,  J.  •  Idem,  §  5. 

•  Hurd  on  Hab.  Cor.,  527. 


HABEAS  CORPUS  AND  CERTIORARI.        225 

child  being  produced  before  the  oflBcer,  its  custody  may  be 
awarded  to  that  parent  which  has  not  joined  the  shakers, 
for  such  time,  under  such  regulations,  and  with  such  pro- 
visions and  directions,  as  shall  be  deemed  proper.^ 

It  would  not  seem,  from  the  language  of  the  statute, 
that  the  oflBcer  is  bound  to  deliver  the  infant  in  such  case 
to  the  custody  of  that  parent  w^hich  had  not  united  with 
the  shakers ;  but  was  left  to  exercise  his  discretion  in  view 
of  all  the  circumstances.  Thus,  the  oflBcer  might  free  the 
infant  from  all  restraint,  and  permit  it  to  exercise  its  own 
choice  as  to  the  parent  with  whom  it  would  remain.^ 

Proceedings  in  this  class  of  cases  are  properly  conducted 
according  to  the  provisions  of  the  forty-eighth  section  of 
the  Juibeas  corpus  act.^  The  oflBcer  before  whom  the  infant 
is  brought  will  hear  all  the  proofs  and  allegations  of  the 
parties  for  the  purpose  of  determining  the  question  of 
the  lawfulness  of  the  detention.  The  infant  being  detained 
by  parental  authority,  and  not  being  entitled  to  be  free 
therefrom,  if  it  is  properly  exercised,  the  court  is  at  liberty 
to  give  any  latitude  to  the  investigation  necessary  to  deter- 
mine what  the  welfare  of  the  infant  demands. 

When  the  tcrit  should  be  certiorari. 

The  statute  provides  that  whenever  an  ajjplicatiou  shall 
be  made  for  a  writ  of  habeas  corpus,  according  to  the  pro- 
visions of  that  act,  to  anj^  oflBcer  or  court,  if  it  appear  to 
such  court  or  oflBcer,  upon  the  facts  set  forth  in  the  petition, 
that  the  cause,  matter  or  offense  for  which  the  person 
is  confined  or  detained  is  not  bailable,  according  to  the 
provisions  of  the  law,  instead  of  awarding  a  writ  of 
habeas  corpus,  a  writ  of  certiorari  may  be  granted,  directed 
to  the  oflBcer  or  person  in  whose  custody  or  under  whose 
control  such  jjrisoner  is  alleged  to  be,  in  like  manner  as 
if  such  writ  of  certiorari  had  been  applied  for  by  the 
prisoner.* 

The  proceedings  upon  the  return  of  such  writ,  are  the 
same  as  upon  the  return  of  writs  of  habeas  corpus,  and 
the  proofs  of  the  parties  in  support  of,  and  against  the  re- 
turn made,  are  the  same  f  and  it  appearing  that  the  person 


•  Idem,  §  6.  «  2  II.  S.,   5G9,  §  50  :    1  Barb.,   349;   I 
'See  1  Sandf.,  G75.  Hill,  391. 

•  2  R.  S.,  5G9,  §  48 ;  2  N.  Y.  S.  at  L.,     '  Idem,  §  57. 

690;    See  18  Wend.,  640;  3  Ilill, 
647. 

II.-29 


226  ADJUTNISTEATIOK  OF  CXVIL  JUSTICE. 

detained  is  illegally  imprisoned,  confined  or  restrained  of 
his  liberty,  a  writ  of  discharge  is  granted,  commanding 
those  having  him  in  custody  to  discharge  him  forthwith  ; 
it  appearing  that  he  is  legally  detained,  and  that  he  is  not 
entitled  to  bail,  all  further  proceedings  thereon  cease.^ 

But  if  it  appear  that  the  i^erson  detained  is  entitled  to 
bail,  the  court  or  officer  hearing  the  cause  shall,  by  order, 
certified  by  the  clerk  of  the  court,  or  by  the  ofiicer  grant- 
ing the  same,  direct  the  sum  in  which  he  shall  be  admitted 
to  bail,  and  the  court  at  which  he  shall  be  required  to 
appear ;  and  on  such  order  being  complied  with,  by  giving 
the  required  bail,  he  shall  be  discharged.^ 

The  statute  further  provides  that  upon  the  production 
of  such  order  to  any  judge  of  the  county  courts  of  any 
county,  he  shall  be  authorized  to  take  the  recognizance  of 
lii«  person  so  detained,  and  of  two  sufiicient  sureties  in  the 
sum  so  directed,  with  a  condition  for  the  appearance  of 
such  j)erson  at  the  court  designated  in  such  order.  But 
the  judge  must  first  be  satisfied,  by  the  oath  of  the  per- 
sons oftering  themselves  as  sureties,  that  they  are  house- 
holder in  the  county,  and  are  severally  worth  double  the 
sum  in  which  they  shall  be  required  to  be  bound,  over  and 
above  all  demands  against  them.^ 

And  the  recognizance  thus  taken  must  be  filed  by  the 
judge  with  the  clerk  of  the  court  before  which  the  prisoner 
is  bound  to  appear ;  and  the  judge  must  also  certify,  on 
such  order,  the  compliance  therewith  ;  which  order,  thus 
certified,  being  produced,  will  entitle  the  prisoner  to  his 
discharge.'*  This  writ  of  discharge,  or  order  for  the  same, 
may  be  enforced  by  the  court  or  officer  issuing  the  writ  or 
making  the  order,  by  attachment,  in  the  same  manner 
as  is  provided  for  a  neglect  tf)  make  a  return  to  a  writ  of 
liabeas  corjnis,  and  with  the  like  eftect  in  all  respects  ;  and 
the  person  guilty  of  such  disobedience  forfeits  to  the 
aggrieved  party,  one  thousand  two  hundred  and  fifty  dol- 
lars, in  addition  to  any  special  damages  such  party  may 
have  sustained/ 

The  person  thus  discharged  is  not  liable  to  be  re-arrested, 
&c.,  for  the  same  cause  ;"  and  any  person,  either  solely  or 
as  a  member  of  any  court,  or  in  the  execution  of  any  order, 


'  2  R.  S.,  569,  §  52.  *  Idem,  §  56. 

'  Idem,  §§  54,  70.  *  Idem,  i?  57. 

ndem,  §  55.  Mdem,  |  59. 


HABEAS  CORPUS  AKD  CEETIOKAEI.        227 

judgment  or  process,  knowingly  recommitting  such  person 
for  the  same  cause,  or  aiding  in  the  same,  is  guilty  of  a 
misdemeanor,  and  forfeits  to  the  party  aggrieved,  one 
thousand  two  hundred  and  fifty  dollai's.^ 

The  statute,  however,  provides  that  it  shall  not  be  deemed 
the  same  cause,  when  :  1.  The  party  shall  have  been  dis- 
charged from  a  commitment  on  a  criminal  charge,  and 
afterwards  be  committed  for  the  same  offense,  by  the  legal 
order  or  process  of  the  court,  wherein  he  shall  be  bound 
by  recognizance  to  appear,  or  in  which  he  shall  be  indicted 
or  convicted  of  the  same  offense ;  or,  2.  Where,  after  a 
discharge  for  defect  of  jiroof,  or  for  any  material  defect 
in  the  commitment,  in  a  criminal  case,  the  prisoner  is 
arrested  again  on  sufficient  proof,  and  committed  thereon; 
or,  3.  Where,  in  a  civil  suit,  the  party  has  been  discharged, 
from  any  illegality  in  the  judgment  or  process  hereinbe- 
fore specified,  and  is  afterwards  imprisoned  by  legal  pro- 
cess for  the  same  cause  of  action  ;  or,  4.  Where,  in  any 
civil  suit,  he  shall  have  been  discharged  from  commitment 
on  mesne  process,  and  shall  afterwards  be  committed  on 
execution  in  the  same  cause,  or  on  mesne  process  in  any 
other  cause,  after  such  first  suit  shall  have  been  discon- 
tinued.^ 

Where,  from  sickness  or  infirmity  of  the  person  detained, 
he  cannot  be  brought  up  on  a  writ  of  luibeas  corpus,  issued 
for  that  purpose,  ^vdthout  danger,  and  the  party  in  whose 
custody  such  person  may  be,  states  such  facts  in  his  return, 
and  verifies  the  same  by  his  oath,  the  court,  being  satisfied 
of  the  truth  of  such  return,  will  proceed  to  hear  such  cause 
as  upon  certiorari.^ 

The  general  provisions  of  the  statute  applicable  to  the 
writ  of  habeas  corpus,  are  likewise  api)licable  to  the  writ 
of  certiorari.  The  ax^plication  for  the  writs  are  the  same  ; 
they  must  specify  which  are  applied  for.''  They  are  neither 
to  be  disobeyed  for  a  defect  in  form.^  Either  may  be  issued 
without  petition  in  certain  cases.*^  Same  character  of 
return  upon  each.^  Same  i)eualty  for  disobedience  of  the 
command  of  the  writs.**  Same  restriction  of  inquiry  into 
the  legality  and  justice  of  the  i)rocess,  judgment,  &c.'*   The 

>2  R.  S.,  5G9,  §G0.  •  Idem,  §  31. 

'  Idem,  §  59,  subs.  1,  2,  3,  4.  '  Idem,  g  '^'2,. 

'  Idem,  5G9,  §  49.  "  Idem,  §  34-37. 

♦  Idem,  564,  §  25,  sub.  6.  "  Idem,  §  42. 

*  Idem,  §  29. 


228  ADMINISTRATION  OF  CIVrL  JUSTICE. 

proceedings  before  any  oflScer  may  be  removed  by  ceriio' 
rari  into  the  supreme  court,  to  be  there  examined  and 
corrected.  But  such  writ  must  be  allowed  by  a  justice 
of  the  supreme  court  after  a  fiual  adjudication  has  been 
had  by  such  officer,  upon  the  claim  of  the  party  to  be 
discharged  or  bailed.^  This  allowance  of  certiorari  may 
now  be  made  by  a  judge  of  the  court  of  appeals,  or  by  a 
county  judge,  or  an  officer  elected  to  perform  the  duties 
of  a  county  judge.^  This  review  is  confined  to  matters  of 
law,  and  if  there  has  been  no  error  in  law,  the  proceeding 
cannot  be  corrected  by  this  method  of  review.^ 

The  certiorari  is  brought  to  a  hearing  by  either  party 
upon  the  usual  notice  of  argument,  and  has  the  preference 
on  the  morning  of  any  day  during  the  first  week  of  the 
term.^ 

Appeal  to  the  court  of  appeals.  The  decision  of  the  supreme 
court  in  these  matters,  is  now  reviewed  by  appeal  to  the 
court  of  appeals.^  A  prisoner  whose  discharge  is  refused 
upon  the  writ  of  luibeas  corpus,  may  i)rosecute  his  appeal 
to  the  court  of  appeals.^  This  appeal  is  taken  after  the 
supreme  court  has  made  a  final  determination  upon  the  writ. 
Where  the  commitment  is  upon  some  criminal  accusation, 
or  the  prisoner  is  detained  in  a  civil  suit,  in  the  former 
case,  the  attorney-general,  in  the  latter,  the  party  aggrieved 
may  appeal.^ 

The  court  of  appeals  has  power  to  make  all  necessary 
orders,  and  to  issue  all  such  writs  as  are  necessary  for  the 
discharge  or  re-commitment  of  the  prisoner,  according  to 
the  judgment  given  by  it.' 

The  statute  provides,  that  except  where  it  may  be  neces- 
sary to  carry  into  full  effect  the  provisions  of  the  habeas 
corpus  act,  the  provisions  of  the  common  law  are  abrogated; 
and  that  the  authority  of  the  courts  and  officers  to  award 
such  writ,  or  to  proceed  thereon,  by  the  common  law,  shall 
be  exercised  in  conformity  to  the  luibe<is  corpus  act,  in  all 
cases  therein  provided  for.^  And  that  in  all  cases  the  pro- 
visions of  that  act,  so  far  as  they  may  be  applicable,  and 
not  otherwise  provided,  shall  be  applied  to  every  writ  of 


» Idem,  573,  §  G9 ;  16  Barb.,  362.      '  Code,  §§  8,  11,  323,  333,  457,  471;  9 
»  L.  1847,  324,  §  17  ;  10  How.,  181.       How.,  304;  3  Duer,  616. 
»  6  Barb.,  369 ;  24  Id.,  521.  •  2  R.  S.,  573,  §  70. 

*  Supreme  Court,  Rule  47,  1858.       '  See  2  R.  S.,  573,  §  71. 

•  Idem,  §  73. 


HABEAS  COEPUS  AND  CERTIOKARI.  229 

habeas  corpus  authorized  to  be  issued  by  any  statute  of  tbe 
state.^ 

Habeas  corpus  ad  testificandum. 

The  statute  provides  that  every  court  of  record  shall 
have  power,  upon  the  application  of  any  party  to  any 
suit  or  proceeding,  civil  or  criminal,  i)ending  in  such 
court,  to  issue  a  writ  of  luibeas  corpus  for  the  purpose 
of  bringing  before  said  court  any  prisoner  who  may  be 
detained  in  any  jail  or  prison  within  this  state,  for  any 
cause  except  a  sentence  for  a  felony,  to  be  examined  as  a 
witness  in  such  suit  or  proceeding  in  behalf  of  the  jjarty 
making  such  api)lication.^  The  application  must  be  veri- 
fied by  aflfidavit,  and  must  state:  1.  The  title  and  nature  of 
the  suit  or  proceeding  in  regard  to  which  the  testimony 
of  such  prisoner  is  desired ;  and,  2.  That  the  testimony  of 
such  prisoner  is  material  and  necessary  to  such  party  on 
the  trial  or  hearing  of  such  cause  or  proceeding,  as  he  is 
advised  by  counsel  and  verily  believes ;  but  if  the  appli- 
cation be  made  by  the  attorney-general  or  district  attorney 
it  is  not  necessary  to  swear  to  such  advice  of  counsel.^ 

Such  writ  is  issued  by  a  justice  of  the  supreme  court, 
or  any  officer  authorized  to  perform  the  duties  of  such 
justice,  upon  the  like  application  of  a  party  to  any  suit 
or  proceeding  pending  in  a  court  of  record,  or  pending 
before  anj^  officer  or  body  who  may  be  authorized  to 
examine  witnesses  in  any  suit  or  proceeding.*  The  same 
writ  may  also  be  issued  by  the  aforesaid  officer,  upon 
the  application  of  a  party  to  a  suit  before  a  justice 
of  the  peace  to  bring  any  prisoner  confined  in  the  jail  of 
the  same  county,  or  the  county  next  adjoining  that  where 
the  justice  resides,  before  such  justice  to  be  examined  as  a 
witness.^ 

Such  prisoner  being  in  execution  on  any  civil  process, 
or  committed  on  any  criminal  charge,  must  be  recommit- 
ted after  testifying.*^ 

'  2  R.  S.,  575,  §  86.  *  Idem,  §  3. 

«  2  R.  S.,  559,  §  1.  "  Idem,  §  4. 

*  Idem,  §  2.  •  Idem,  §  5. 


230  ADMDTISTEATION  OF  CIVIL  JUSTICE. 

CHAPTER  XV. 

CERTIORAJII. 

The  office  of  the  writ  of  certiorari  is  to  correct  errors  in 
a  judicial  character  of  inferior  courts,  and  errors  in  the 
determination  of  special  tribunals,  commissioners,  magis- 
trates and  officers  exercising  judicial  powers  affecting  the 
property  or  rights  of  a  citizen,  and  who  act  in  a  summary 
way,  or  in  a  new  way  not  known  to  the  common  law,  and 
also  the  proceedings  of  municipal  corporations  in  certain 
cases. 

The  supreme  court  has  jurisdiction  to  award  a  certiorari, 
even  where  the  law  has  provided  some  other  tribunal  to 
hear  and  determine  the  questions,  if  the  jurisdiction  is  not 
taken  away  by  express  words. 

The  acts  of  officers  of  municipal  corporations,  if  plainly 
judicial  in  their  character,  may  be  reviewed  on  certiorari} 
So,  the  determination  of  an  aijpeal  from  the  commissioners 
of  highways.^  So,  the  decision  of  an  officer  to  whom  an 
application  for  a  liaheas  corpus  is  made,  that  he  has  no 
jurisdiction  to  grant  it.^  So,  where  an  officer  discharged  a 
complaint  under  the  act  to  abolish  imi^risonment  for  debt, 
on  the  ground  of  want  of  proof.*  So,  in  proceedings  in 
insolvency^  and  court  martial.^  So,  as  to  the  determination 
of  canal  appraisers,  where  it  is  alleged  they  acted  without 
notice.^  So,  as  to  a  municipal  assessment  for  a  local  im- 
provement where  there  has  been  an  essential  departure 
from  the  statute  in  the  i)rincipal  of  assessment.^  Decisions 
made  under  the  absconding  debtor  act  may  also  be  exam- 
ined by  the  supreme  court  upon  certiorari,^  likewise  any 
adjudication  in  summary  proceedings  to  recover  the  pos- 
session of  land.^° 

The  order  of  a  board  of  health,  adjudging  a  certain 
business  a  nuisance,  is  a  legislative  act,  and  cannot  be 


'  2  Hill,  14.  ''  Fonda  v.  Canal  Appraisers,  1  Wend., 

'  2  Cai.,  179;  15  Johns.,  137.  288. 

'  Peoi^k  V.  Mayer,  16  Barb.,  362.  *  People  v.  City  of  Rochester,  21  Barb., 

*  Learned  v.  Duval,  3  Johns.  Cas.,  141.  656;  Belts  v.  City  of  Williamsburgh, 
'  Anon.,  1  Wend.,  90.  15  Wend.,  255. 

•  Rathinm  v.  Sawyer,  15  Wend.,  451.  »  3  R.  S.,  5th  ed.,  902  (602). 

"  Idem,  839  (516). 


CERTIORABI.  231 

reviewed  by  certiorari.^  A  void  order  of  commissioners 
of  highways  may  be  treated  as  voidable,  and  the  party 
may  bring  a  certiorari  to  quash  it.^  In  order  to  warrant 
interference  with  a  municipal  corporation  by  certiorari, 
the  act  must  be  plainly  judicial.  A  certiorari  does  not 
lie  to  review  a  corporate  resolution  appropriating  laud  for 
a  pubhc  square.^  In  general  the  court  will  not  allow  this 
writ  where  taxes  or  award  of  damages  are  in  question, 
which  affect  a  considerable  number  of  persons.* 

The  granting  of  a  certiorari  is  in  the  discretion  of  the 
coiu-t,  and  it  is  often  denied  where  the  power  to  issue  it 
is  unquestionable,  and  where  there  is  apparent  error  in 
the  proceedings  below.^  Before  allowing  or  acting  upon 
the  writ  the  court  should  be  satisfied  that  it  is  essential  to 
prevent  some  substantial  iujiu?y  to  the  applicant,  and  that 
the  mere  object  aimed  at  by  him  would  not,  if  accom- 
plished, be  productive  of  great  inconvenience  or  injustice.^ 
A  certiorari  should  not  issue  where  the  party  has  another 
adequate  remedy,^  nor  until  the  case  is  finally  adjudicated 
below.*  It  seems  that  the  writ  will  not  be  granted  after 
two  years,^  and  in  some  cases  the  lapse  of  a  shorter  time 
may  be  ground  for  refusing  the  allowance.^" 

Whenever  the  right  to  review  by  certiorari  is  given  by 
statute,  the  writ  issues  as  a  matter  of  course,  as  where  it 
is  to  review  a  report  of  commissioners  in  a  Xew  York 
street  case,"  or  to  review  an  indictment  for  forcible  entry 
and  detainer.^^  In  other  cases  it  can  only  issue  by  order 
of  the  court. 

Applying  for  the  writ.  An  aflSdavit  should  be  prepared 
showing  the  facts  which  the  party  supj)oses  entitles  him 
to  the  writ  of  certiorari,  and  upon  this  a  motion  must  be 
made  for  the  allowance  of  the  writ,  in  all  cases  where  the 
writ  does  not,  by  statute,  issue  of  course,  or  is  issued  on 
behalf  of  the  people.^^  The  motion  should  be  made  at 
special  term  (it  cannot  be  allowed  by  a  judge  or  other 


*  People  V.  Board  of  Health,  20  How.  ~  People  ex  rel.  Onderdonk,  v.  Supervi- 

Pr.,  458.  sors  of  Quems,  1  Hill.,  195. 

*  Fitch   V.    Commissioners  of  Kirkland,  "  Lynde  v.  Noble,  20  Johns.,  80. 

22  Wend.,  132.  »  25  Wend.,  693 ;  2  Hill,  9. 

*  Matter  of  Mount  Morris  Squa/re,  2  Hill,  "  7  How.  Pr.,  166. 

14-  "  Matter   of  Mount    Morris    Square,    2 

*  Case  of  Fifty-First  Street,  3  Abb.  Pr.,  Hill,  14. 

232.  »  Perjpk  V.  Runkle,  6  John.s.,  334. 

'' People  V.  Stilwell,  Id's.  Y.,  531.  "  Munroe  \.   Baker,    6   Cow.,    396;    13 

'  People  V.  Mayor,  dkc,  of  New  York,  5  Wend.,  664;  20  Id.,    685;    2  Hill 

Barb.,  43.  14;  6  Johns.,  331. 


232  ADMINISTRATION  OF  CIYIL  JUSTICE. 

ofiBcer  at  chambers)/  and  it  may  be  ex -parte;  but  the  court 
may,  if  it  is  in  doubt,  instead  of  allowing  the  writ  on  ex 
parte  motion,  grant  an  order  to  show  cause,  and  hear  the 
other  side  before  determining  the  question.  If  the  writ  is 
granted,  an  order  to  that  effect  should  be  entered. 

The  tvrit.  A  certiorari  is  a  judicial  writ ;  it  issues  out 
of  the  supreme  court ;  it  must  be  sealed,  and  should  be 
directed  to  the  judge  or  officer,  or  other  party  com- 
plained of,  reciting  the  proceedings,  and  commanding  the 
judge  or  officer  to  certify  and  return  the  record  or  pro- 
ceedings to  the  supreme  court  on  a  specified  day.  It  is 
tested  and  signed  like  an  ordinary  writ ;  but  it  should  be 
Indorsed  with  a  copy  of  the  order  allowing  the  writ,  or  a 
certificate  that  the  same  has  been  duly  allowed,^  It  is 
sufficient  if  a  copy  of  the  order  allowing  the  writ  is  served 
with  it.  A  party  who  has  no  interest  cannot  prosecute 
the  writ  of  certiorari,^  and  the  writ  must  show  that  some 
person  is  aggrieved,  and  recite  his  complaint."  It  cannot 
be  prosecuted  at  the  suit  of  an  individual,  but  must  be  at 
the  suit  of  the  people  upon  the  relation  of  an  individual.* 
If  the  writ  is  issued  upon  the  relation  of  public  officers,  the 
names  of  the  officers,  with  the  title  of  the  office,  should  be 
given,  as  in  the  case  of  the  overseers  of  the  poor,  the  indi- 
vidual names  of  the  overseers,  in  addition  to  the  name  of 
the  office,  should  be  given.^  If  the  writ  is  to  review  the 
proceedings  of  a  municipal  corporation,  it  should  be 
directed  to  the  corporation  by  its  corporate  name.'  So, 
if  it  is  intended  to  bring  up  the  proceedings  of  the  New 
York  police  board  for  review,  the  writ  should  be  addressed 
to  the  police  board,  without  naming  the  commissioners.' 
If  it  is  intended  to  review  the  proceedings  of  officers,  the 
individuals  should  be  named,  with  the  style  of  their  office. 
The  writ  should  be  made  returnable  at  a  general  term,  in 
the  district  where  the  case  arose.^ 

Motion  to  quash  or  supersede  the  writ.  If  the  writ  has  been 
irregularly  or  prematurely  allowed,  the  court  will,  on 
motion,  direct  a  supersedeas  of  the  writ  to  be  entered,  as 
■where  it  was  made  to  appear  that  the  writ  was  allowed 


*  Gardner  v.  Commissioners  of  Warren,  '  Overseers  of  Greenville  v.  Bishop,  2 

10  How.  Pr.,  181.  How.  Pr.,  187. 

*  Matt    V.    Commissioners   of  Rush,    19  ''  Sturr  x.  Trust,  of  Rochester,  6  Wend., 

Wend.,  640.  564;    Exp.   Mayor  of  Albany,    23 

'  Colden  v.  Botts,  12  Wend.,  234.  Wend.,  277. 

*  Exp.  Mayor  of  Albany,  23  Wend.,  277.  '  PeopU  v.    Cholwell,  6  Abb.  Pr,  151. 

*  Wildy  V.  Washburn,  16  Johns.,  49.  »  The  People  v.  Kelky,  35  Barb.,  448. 


CEETIOEAEI.  233 

before  the  proceedings  removed  by  it  were  completely 
terminated.^  This  motion  should  be  made  before  the 
return.  If  the  writ  was  granted  in  an  improper  case,  the 
defendant  may  move  to  quash  it,  and  the  court  will  quash 
it  even  after  a  return  and  hearing  on  the  merits.^  It  has 
been  said  that  a  motion  to  quash  the  writ  cannot  be  sus- 
tained till  after  the  return  has  been  made,^  but  no  good 
reason  is  apparent  why  it  may  not  be  made  at  any  time.* 
The  motion  papers  should  be  entitled  with  the  name  of 
the  defendant  in  error.  Ads.  Tlie  PeojgJe  ex  rel,  &c.,  the 
plaintiff  in  error.^ 

Effect  of  writ  as  to  stay.  The  service  of  a  certiorari, 
unaccompanied  by  any  qualification,  suspends  the  powers 
of  those  to  whom  it  is  directed,  unless  the  order  or  judg- 
ment has  begun  to  be  executed.^ 

The  7-eturn.  The  writ  is  obeyed  by  returning  and  certify- 
ing the  record  of  the  proceedings  of  the  inferior  tribunal, 
and  where  there  is  technically  no  record,  the  written  pro- 
ceedings and  orders,  or  a  history  of  the  proceedings,  and 
the  written  orders  which  are  in  the  nature  of  records,  are 
to  be  certified,  and  filed  in  the  clerk's  office  of  the 
county  where  the  order  allowing  the  writ  is  entered."' 
Nothing  but  the  record  or  history  of  the  proceed- 
ing need  be  returned;^  but  it  should  be  shown  that 
the  tribunal  had  jurisdiction,  and  enough  of  the  facts  or 
evidence  before  the  inferior  court  should  be  returned  to 
enable  the  court  to  determine  upon  a  point  of  jurisdiction 
or  other  question  of  law  arising  in  the  course  of  the  pro- 
ceeding.^ On  a  certiorari  to  remove  proceedings  by  a 
landlord  to  recover  possession  of  land,  the  court  will 
require  the  return  of  so  much  of  the  evidence  as  is  neces- 
sary to  show  that  the  relation  of  landlord  and  tenant 
existed  between  the  parties.^"  So,  on  certiorari  to  the 
sessions,  in  a  bastardy  case,  the  court  may  order  the  ses- 
sions to  return  such  facts  as  are  necessary  to  review  the 
law  of  the  case."  So,  on  a  certiorari  to  the  general  ses- 
sions to  remove  their  proceedings,  on  an  order  of  settle- 
ment, the  sessions  will  be  compelled  to  return  the  evidence 

*  People  V.  Peabody,  5  Abb.  Pr.,  194.  Wend.,  6G4;   Gonover  Case,  5  Abb. 
"  2  Hill,  9;  1  How.  Pr.  141.  Pr.,  182. 

»  Clark  V.  Lawrence,  1  Cow.,  48.  '  25  Wend.,  168. 

*  S.  &  W.  K.  R.  Co.  V.  McCoy,  5  How.     "  Starrv.Trus('sofRocKter,QWiin±,bQ^. 

Pr.,  378.  »  MuUins  v.  The  People,  24  N.  Y.,  403  ; 

*  Peck  V.  Witbeck,  2  How.  Pr.,  70.  Kathbun  v.  Sawyer,  15  Wend.,  452. 

*  Paichin  v.  Mayor,  &c.,  of  Brooklyn,  13    '°  Benjamin  v.  Benjamin,  1  Seld.,  383. 

"  Sweet  V.  Overs'rs  of  Clinton,  3  Johns.,  23. 

n.— 30 


234  ADMmiSTRATION  OF  CIVIL  JUSTICE. 

and  points  of  law.^  In  the  return  of  a  regimental  court- 
martial  to  a  certiorari  to  review  their  proceedings,  in 
imposing  a  fine,  the  facts  or  evidence  are  not  to  be 
returned  any  further  than  is  necessary  to  enable  the  court 
to  determine  upon  a  point  of  jurisdiction  or  other  question 
of  law  arising  in  the  course  of  the  proceeding.^ 

Upon  a  common  law  certiorari  to  the  referees  in  high- 
way cases,  to  review  their  proceedings  on  an  appeal  from 
the  highway  commissioners,  all  facts  and  evidence  bearing 
on  the  question  of  jurisdiction  must  be  returned,  including 
that  in  relation  to  the  character  and  termini  of  the  pro- 
posed road,  and  that  which  relates  to  the  vahdity  of  the 
application  to  the  commissioners ;  but  that  which  tends 
simply  to  show  the  i)ublic  utility  of  the  proposed  road, 
need  not  be  stated.^ 

Inferior  magistrates,  when  requu-ed  by  a  common  law 
writ  of  certiorari,  to  return  their  proceedings,  must  show, 
affirmatively,  that  they  had  authority  to  act ;  and  where 
their  authority  and  jurisdiction  depends  upon  a  fact  to  be 
proved  before  themselves,  and  such  fact  be  disputed,  the 
magistrate  must  certify  the  proofs  given  in  relation  to  it, 
for  the  purpose  of  enabling  the  higher  court  to  determine 
whether  the  fact  is  established.'*  It  is  the  duty  of  the  court 
below  to  return  enough  of  the  proceedings  to  show,  not 
only  that  they  had  jurisdiction  of  the  subject  matter  of  the 
inquiry  and  of  the  person,  but  also  that  some  proof  was 
made  which  had  at  least  a  tendency  to  establish  the  mate- 
rial allegations  in  issue.^  The  return  cannot  be  contra- 
dicted by  an  assignment  of  errors ;  it  must  be  taken  as 
conclusive,  and  acted  upon  as  true.  If  false,  the  remedy 
is  by  action.^ 

If  the  writ  require  unnecessary  evidence  to  be  returned, 
such  requisition  may  be  disregarded.''  If  the  return  con- 
tains any  thing  not  proper,  it  will  be  disregarded  pro 
tantoJ'  The  court  will  disregard  matter  in  the  return  not 
called  for  by  the  writ,  and  will  not  intend  that  proceedings 


*  Overseers  of  Brookhaven  v.   Overseers  '  People  v.    Overseers    of    Ontario,    15 

of  Southold,  2  Cow.,  575.  Barb.,  286. 

'  Rathbun  v.  Sawyer,  15  Wend.,  451.  '  Haines  v.   Judges  of    Westchester,   20 

*  People  ex  rel.  Van  Rensselaer  v.    Van  Wend.,  625. 

Alstyne,  32  Barb.,  131.  '  Ex  parte  Mayor,  &c,  of  Albany,  23 

*  People  ex  rel.  Bodine  v.  Goodwin,  5  N.  Wend.,  277. 

Y.,  668 ;    Millins  v.  The  People,  24  *  The  People  v.  Mayor,  &c.,  of  K  T.,  2 
N.  Y.,  397.  HiU  9. 


CEETIORABI.  235 

not  returned  were  irregular.^  But  the  necessary  evidence 
to  make  out  a  fact  essential  to  the  jurisdiction  of  the  offi- 
cer will  not  be  assumed.^  If  the  writ  is  directed  to  an 
officer,  and  he  goes  out  of  office  before  making  his  return, 
he  may,  notwithstanding,  make  a  valid  return  of  what 
was  done  by  him  while  in  office.^  If  the  person  or  officer 
to  whom  the  writ  is  directed,  dies  before  any  return  is 
made,  the  court  will  hear  and  decide  the  case,  on  motion 
and  affidavit.* 

Hearing.  The  case  may  be  brought  to  hearing  at  general 
term,  by  either  party,  upon  the  usual  notice  of  argument ; 
and  is  entitled  to  a  preference  on  the  morning  of  any  day 
during  the  first  week  of  the  term.^ 

How  determined.  If,  on  examination,  it  appears  that  the 
court  below  had  no  jurisdiction  of  the  subject  matter,  or 
that  there  was  no  evidence  legally  tending  to  establish  the 
main  facts  which  could  authorize  the  judgment — in  either 
case,  the  court  will  set  the  judgment  aside.  In  such  cases, 
the  court  does  not  deliberate  upon  the  weight  and  just 
force  of  evidence,  but  determines  merely  whether  there  is 
any  evidence  whatever  f  and  where  the  certiorari  is  author- 
ized by  statute,  the  court  may  also  examine  and  correct 
any  erroneous  decisions  of  the  officer  upon  questions  of 
law.'  On  a  certiorari  to  review  an  assessment  made  by 
judges,  under  an  act  authorizing  the  construction  of  a  dam, 
and  i^roviding  that  the  damages  of  lands  taken  might  be 
assessed  by  judges  of  the  common  pleas,  it  is  the  duty  of 
the  court  to  inquire  into  the  principles  upon  which  the 
judges  assessed  the  damages,  and  if  they  were  erroneous, 
the  whole  assessment  should  be  set  aside.^  So  where  the 
common  pleas  assessed  damages  to  persons  not  owners, 
their  determination  may  be  reviewed  upon  the  evidence  in 
the  return.^  In  reviewing  assessments  for  local  improve- 
ments, the  court  will  only  look  at  the  principle  of  appor- 
tionments, and  not  to  the  amount  charged  to  any  indi- 
vidual.''' The  court  will  not  review  the  acts  of  boards  of 
supervisors  in  levying  the  general  town  and  county  taxes, 


'  Lawton  v.    CommWs  of  Cambridge,  2  Barb.,  286 ;    Millins  v.   The  People, 

Cai.,  119.  24  N.  Y.,  399. 

*  People  V.  Soper,  1  N.  Y.,  428.  '  Morewood  v.  IloHister,  6  N.  Y.,  309. 
'  Harris  v.  Wntnpy,  6  How.  Pr.,  llti.  '  Baldwin  v.  Calkins,  10  Wend.,  166. 

*  Matter  of   Shotwdl,   10  JohriH.,   304;  ^  SUme  v.  Mayor  of  K  Y.,  25  Wend., 

Seymore  v.  Webster,  I  Cow.,  168.  157. 

»  Supreme  Court,  Rule  47.  "2   Wend.,   395;    15  Id.,  374;  23  Id., 

*  People  V.    Overseers    of    Ontavio,    15  277. 


236  ADMINISTRATION  OF  CIVIL  JUSTICE. 

when  no  complaint  is  made  as  to  the  principle  on  which 
the  tax  was  apportioned,  but  only  that  the  supervisors 
erred  in  auditing  some  of  the  county  charges.^  An  objec- 
tion that  one  of  the  judges  had  previously  passed  upon 
the  same  question,  cannot  be  taken  for  the  first  time  on 
certiorari  f  but  where  more  jurors  were  summoned  in  a 
summary  proceeding,  than  the  statute  jDrescribes,  the  pro- 
ceeding will  be  reversed  on  certiorari? 

Judgment.  Judgment  is  entered  according  to  the  deci- 
sion of  the  court,  and  perfected  as  in  ordinary  actions. 


CHAPTER  XVI. 

ARBITRATION. 


An  arbitration  is  the  hearing  and  determination  of  a 
cause  in  controversy  between  parties,  by  a  person  or  persons 
chosen  for  that  purpose  between  them.  The  act  by  which 
the  matter  in  controversy  is  referred  to  the  arbitrator  or 
arbitrators,  is  denominated  a  submission.  This  submission 
may  be  either  by  i)arol  or  in  writing,  and  at  common  law 
or  under  the  statute.  If  the  submission  be  by  parol,  it  is 
an  arbitration  at  common  law.^  If  in  writing,  it  is  an 
arbitration  under  the  statute.^  When  a  parol  submission 
is  valid,  it  is  to  be  carried  out  in  all  its  legitimate  conse- 
quences ;  and  not  being  begun  under  the  statute,  the  sub- 
sequent proceedings  are  not  to  be  aided  or  injured  thereby; 
but  the  proceedings  are  as  at  common  law.°  But  when 
begun  under  the  statute,  the  provisions  of  the  statute 
apply,  except  those  relating  to  the  powers  of  the  court  to 
vacate  and  to  modify  the  award,  and  to  the  entry  of 
judgment  thereon.  Whenever  the  submission  is  in  writing, 
the  proceeding  must  be  conducted  strictly  according  to  the 
provisions  of  the  Eevised  Statutes.'^ 

^People  V.  Supervisors  of  Allegany,  15  *4  Denio,  347;  5  Paige,   575;  Bvison 

Wend.,  198.  v.  Lohnes,  cited  below. 

'  Commissioners  of  Carmel  v.  Judges  of  *  Idem;  2  Hill,  271. 

Putnam,  7  Wend.,  264.  '  Bulson  v.  Lohnes,   Court  of  Appeals, 

^  Farrington  v.  Morgan,  20  Wend.,  207.  September   Term,  1864,  (not  yet  re- 

*  4  Denio,  .348,  per  Bronsox,  J. ;  5  How.  ported.) 
Pr.,  315;  15  Weud.,  99. 


ARBITEATION.  237 


Submission  under  the  statute  and  at  the  common  law. 

The  statute  provides  that  all  persons,  except  infants, 
and  married  women,  and  persons  of  unsound  mind,  may, 
by  au  instrument  in  writing,  submit  to  the  decision  of  one 
or  more  arbitrators,  any  controversy'  existing  between  them, 
which  might  be  the  subject  of  an  action  at  law  or  of  a  suit 
in  equity  ;  and  may,  in  such  submission,  agree  that  a  judg- 
ment of  any  court  of  law  and  of  record,  to  be  designated 
in  such  instrument,  shall  be  rendered  upon  the  award  made 
l^ursuant  to  such  submission.^  The  statute,  however,  pro- 
vides that  no  such  submission  shall  be  made  respecting  the 
claim  of  any  person  to  any  estate,  in  fee  or  for  life,  to  real 
estate  ;  but  any  claim  to  an  interest  for  a  term  of  years, 
or  for  one  year  or  less,  in  real  estate,  and  controversies 
respecting  the  partition  of  lands  between  joint  tenants 
and  tenants  in  common,  or  concerning  the  boundaries  of 
lands,  or  concerning  the  admeasm^ement  of  dower,  may 
be  thus  submitted  to  arbitration.^ 

These  provisions  of  the  statute,  presenting  certain  forms 
for  submission  to  arbitrators,  and  allowing  the  parties  to 
agree  that  a  judgment  of  a  court  of  record,  designated  in 
the  instrument  of  submission,  should  be  rendered  upon  the 
award,  are  cumulative  merely,  and  in  aid  of  the  common 
law.^  It  is  not  to  be  presumed  that  the  legislature  intended 
to  make  any  innovation  ui^on  the  common  law,  further 
than  the  case  absolutely  requires.  Consequently,  where 
the  submission  jjrovided  for  a  judgment  on  the  award  to 
be  entered  in  the  county  court,  it  was  held  that  au  action 
might  be  maintained  thereon  in  the  supreme  court  ;*  that 
the  right  of  action  on  such  award  is  not  suspended  until 
the  term  of  the  county  court  next  succeeding  the  award.* 

Who  may  submit  matters  to  arbitrators. 

The  statute  provides  that  all  persons  may  do  so,  except 
infants,  and  married  women,  and  persons  of  unsound 
mind.'*  By  the  acts  of  18G0  and  1802,*'  the  right  of  a  married 
woman  to  maintain  and  defend  an  action  in  her  own  name 
and  right,  in  all  matters  having  relation  to  her  sole  and 
separate  property,  or  for  damages  to  her  person  or  charac- 

>  2  R.  S.,  541,  §  1.  *  21  N.  Y.,  148. 

« Idem,  §  2.  "2  R.  S.,  541,  §  1 ;  2  N.  Y.  S.  at  L.,  560. 

»  24  Wend.,  258;  2  Hill,  271,  and  note;  "  Laws  18G0,  ch.  90  ;    Laws  1862,  ch. 
4  N.  Y.,  157.  172  ;  4  N.  Y.  S.  at  L.,  515. 


238  •      ADMrsnSTRATION   OF   CIVIL  JUSTICE. 

ter,  the  same  as  if  she  were  sole,  is  fully  conferred.  Having 
such  general  powers  under  the  statute,  to  use  and  control 
her  own  separate  property,  there  seems  to  be  no  good  reason 
why  she  may  not  execute  a  valid  submission  to  arbitration 
of  any  controversy  which  may  arise  in  respect  to  such 
property.  What  effect  such  statutes  may  have  upon  the 
above  exceptions  is  worthy  of  consideration. 

A  railroad  com]Dany  authorized  to  acquire  land  for  the 
construction  of  its  road  by  purchase,  may  submit  to  arbi- 
tration the  price  to  be  paid  for  such  land ;  and  where  its 
oflScers  are  intrusted  with  the  power  of  making  purchases, 
and  are  in  the  habit  of  agreeing  upon  the  price  by  sub- 
mission to  arbitrators,  and  the  awards  in  such  cases  are 
paid  by  the  financial  agent  of  the  company,  under  a  gene- 
ral resolution  to  pay  the  amount  awarded,  the  oflScers  have 
power  to  bind  the  company  by  such  submission,  as  to  the 
price.^ 

The  general  rule  is,  that  where  there  is  a  capacity  to 
contract,  and  a  liability  to  pay,  there  is,  generally,  a  power 
to  arbitrate.'^  Thus,  a  municipal  corporation  maj^  submit 
to  arbitration,  and  may  do  so  by  resolution.^  So,  a  guar- 
dian may  submit  on  behalf  of  his  ward  ;*  attorneys  on 
behalf  of  their  clients.^ 

What  matters  may  he  siihmitted.  Under  the  statute  any 
matter  which  may  be  the  subject  of  an  action  at  law,  or 
of  a  suit  in  equity,  may  be  submitted,  except  claims  to  any 
estate,  in  fee  or  for  life,  to  real  estate.*^  This  exception 
applies  only  to  claims  where  the  controversy  is  for  the 
legal  title,  and  not  where  the  equitable  title  is  in  dispute.'' 
Thus,  where  the  legal  title  is  admitted  to  be  in  the  defend- 
ant, but  the  relief  sought  is  a  specific  ijerformance  of  an 
agreement  in  respect  to  the  lands,  or  for  damages  for 
the  non-performance,  such  controversy  may  be  properly 
submitted.^  The  statute  itself  permits  any  claim  to  an 
interest  in  lands  less  than  a  freehold  estate,  as,  an  interest 
for  a  term  of  years,  or  for  one  year  or  less,  to  be  thus  sub- 
mitted to  arbitrators.**  The  same  was  law  prior  to  the 
statute.  A  fi?eehold  or  inheritance  in  the  land  could  not 
be  determined  by  arbitration.^ 

'  8  N.  Y.,  160.  '  2  Hill,  271  ;  23  Wend.,  366. 

""  3  CaL,  254;  3  Esp.,  101  ;  3  Bam.  &  '  2  R.  S.,  541,  §  2. 

Aid.,  47.  ^  14  N.  y.,  32. 

^  1  Barb.,  584 ;  1  HUt.,  469 ;  -23  Wend.,  "  2  R.  S.,  541,  §  2, 

366.  »  1  RoU.,  242,  L.  10. 
♦  3  Cai.,  253. 


AEBITRATIOIS'.  239 

Although  a  religious  corporation  may  have  power,  gene- 
rally, to  contract,  and  may  be  liable  to  pay,  yet  it  cannot 
submit  to  an  arbitrator  the  question  whether  it  shall  sell 
its  real  estate,  where  it  has  no  power  to  sell  the  same.^ 
The  principle  applicable  is,  that  the  party  cannot  submit 
to  an  arbitrator  the  decision  of  questions  calling  for  the 
doing  of  that  which  the  party  has  no  authority  to  do. 
Thus,  neither  individuals  or  associations  have  any  autho- 
rity to  confer  judicial  powers  upon  a  body  of  men  to  be 
created  or  selected  by  them,  from  time  to  time,  to  act  in 
respect  to  their  common  interest.  Such  powers  must 
originate  with,  and  be  conferred  by,  the  sovereign  power 
of  the  state  or  nation.  Hence,  a  lodge  of  Odd  Fellows 
cannot  confer  judicial  powers  in  respect  to  property  in 
which  they  have  a  common  interest,  upon  a  body  of  men 
or  oflflcers,  to  be,  from  time  to  time,  selected  out  of  the 
association  at  large,  as  a  tribunal  having  general  authority 
to  adjudicate  upon  alleged  violations  of  rules  of  the  asso- 
ciation, and  to  decree  a  forfeiture  of  the  rights  of  such 
property  by  the  parties  adjudged  to  have  been  guilty  of 
such  violations,  &c^.  Upon  the  same  principle,  it  is  not 
competent  for  two  adverse  parties  in  a  religious  corpora- 
tion to  submit  to  arbitration  the  question,  who  are  the 
duly  elected  trustees  of  such  corporation.^ 

The  submission.  This  is  the  authority  given  by  the  par- 
ties thereto  to  the  arbitrators,  empoAvering  them  to  inquire 
into,  and  determine,  the  particular  questions  therein  sub- 
mitted. This  submission  may  be  by  parol,  or  in  writing. 
K  it  is  a  submission  under  the  statute,  it  must  be  in 
writing  ;  but  at  common  law  it  might  be  by  parol,  except 
in  certain  cases,  where  a  written  submission  was  deemed 
to  be  necessary,  because  of  the  importance  of  the  subject 
submitted ;  as  in  case  of  controversies  in  respect  to  title 
to  real  estate  ;  or  in  respect  to  other  matters  in  which  the 
law  deemed  a  parol  contract  not  valid  and  binding.* 

Inasmuch  as  a  submission  is  an  agreement  between  the 
parties  thereto,  by  which  certain  persons  as  arbitrators  are 
emi)owered  to  decide  questions  of  riglit  ])etween  them,  it 
would  seem  to  follow  that  such  matters  only  could  be  sub- 
mitted to  such  determination  by  parol  as  can  be  disposed 
of  by  parol  agreement. 

'  23  Barb.,  327;  4  Abb.,  182.  «  2  Barb.  Ch.,   4.30;  2  Hill.,   272;  Kyd 

»  16  N.  Y.,  112.  on  Awards,  7. 

*  23  Barb.,  327  ;  4  Abb.,  182. 


240  ADMINISTRATION  OF  CIVIL  JUSTICE. 

The  submission  may  be  general  or  special ;  that  is,  it 
may  submit,  generally,  all  matters  in  controversy  between 
the  parties,  or  it  may  only  submit  particular  matters.  But 
as  it  is  the  instrument  conferring  the  authority  by  which 
the  arbitrators  are  to  act  in  the  premises,  it  should  care- 
fully define  the  extent  of  authority  intended  to  be  conferred, 
and  the  arbitrators  must  confine  themselves  strictly  to  the 
authority  thus  conferred.^ 

Where  the  submission  is  of  all  demands,  it  is  general  and 
includes  all  questions  relating  to  real  or  personal  estate.* 
So,  where  the  submission  specifies  particular  questions, 
and  then  adds,  "  and  divers  other  matters,"  it  is  equivalent 
to  a  general  submission.^  Where  the  submission  is  of  "  all 
the  demands  which  either  party  has  against  the  other," 
■whatever  constitutes  a  demand  is  included.*  So,  where 
the  submission  is  between  several  persons  "  of  all  matters 
between  them,"  it  imports  a  submission  of  all  matters  that 
either  had  against  the  other,  jointly  or  severally.^ 

Where  the  submission  is  of  special  matters,  they  should 
be  so  clearly  defined  that  there  can  be  no  difficulty  in 
determining  how  much  is  submitted ;  for  if  the  arbitrators 
go  beyond  the  authority  contained  in  the  submission,  their 
award  would  be  vitiated.  Thus,  where  the  submission 
empowered  the  arbitrator  simply  to  ascertain  the  change 
in  cost  of  the  defendants'  work  by  reason  of  deviation  from 
the  building  plans,  and  the  arbitrator  made  allowances,  by 
way  of  deduction  against  him,  for  workmanship  and  mate- 
rials alleged  to  be  defective  in  parts  of  the  building  which 
had  not  been  altered,  it  was  held  that  he  had  exceeded  his 
authority  and  his  award  of  a  gross  amount  was  void.*'  So, 
where  there  is  a  submission  to  settle  the  terms  of  the  dis- 
solution of  a  partnership,  it  does  not  include  a  note  held 
by  one  of  the  partners  against  the  others,  it  not  being 
shown  that  it  was  given  for  a  debt  growing  out  of  the 
partnership.' 

Of  the  construction  of  a  submission.  Like  other  agree- 
ments, it  is  to  be  construed  according  to  the  manifest 
intention  of  the  parties,  and,  if  possible,  it  should  be  so 
construed  as  to  accomplish  the  end  sought  by  the  parties. 
Thus,  where  a  matter  is  submitted  to  arbitration,  it  is 


»  6  Johns.,  U;  4  N.  Y.,  157;  7  Hill,     *  12  Johns.,  311;  23  Barb.,  187. 

329.  '  19  Wend.,  285. 

•  5  Wend.,  268 ;  15  Johns.,  197.  *  1  Barb..  325. 

»2Cai.,  320.  M  Wend.,  511. 


AEBITKATI02f.  241 

implied  that  the  parties  agree  to  be  bound  by  the  award, 
although  the  submission  contain  no  express  agreement  to 
that  eSect.^  So  a  submission  of  a  difference  respecting 
one-eighth  part  of  a  lottery  ticket,  and  the  prize  drawn 
thereon,  embraces  the  question  of  payment  as  well  as  that 
of  sale  and  liability  to  pay ;  and  an  award  is  conclusive  on 
the  parties  as  to  the  legality  of  the  lottery.^  So  a  submis- 
sion to  hear  evidence  in  relation  to  a  lease,  to  the  end  that 
all  matters  in  controversy  might  be  concluded,  shows  an 
intention  to  terminate  the  lease.^  Bonds  of  submission  are 
to  be  liberally  construed  to  authorize  an  award  made.* 

An  agreement  to  submit  a  cause  pending  in  court  to  an 
arbitration,  operates  as  a  discontinuance  of  the  cause,  even 
before  the  arbitrators  have  taken  upon  themselves  the 
burden  of  the  submission.^  But  a  valid  submission  may 
be  made  without  that  effect  where  it  appears  from  the 
agreement  itself,  that  such  was  the  intention  of  the  parties. 
A  general  agreement  to  submit  to  arbitration  operates  as 
a  discontinuance  merely,  from  the  implied  understanding 
that  the  suit  is  to  be  no  farther  prosecuted.^ 

Of  the  revocation  of  a  submission.  As  an  agreement  to 
submit  matters  to  arbitrators  is  a  mere  authority  to  them 
to  act  in  the  premises,  such  submission  is  revocable  by 
either  party.  This  formerly  might  be  done  at  any  time 
before  the  arbitrators  had  executed,  and  made  ready  to  be 
delivered,  their  award."  This  right  has  been  somewhat 
modified  by  the  statute.  It  provides  that  neither  party 
can  revoke  the  submission  after  the  cause  has  been  finally 
submitted  to  the  arbitrators  for  a  decision,  upon  a  hearing 
of  the  parties.^  This  provision  of  the  statute  applies  to  all 
cases  of  submission  to  arbitration,  whether  the  submission 
authorizes  a  judgment  on  the  award  or  not.^  But  it  does 
not  apply  where  the  submission  is  by  parol.^" 

Where  the  submission  is  under  seal,  a  parol  revocation 
is  not  sufticient."  '^ov  can  a  matter  be  withdrawn  by  parol, 
from  a  submission  under  seal.'^  The  power  to  revoke  must 
be  the  sanje  that  made  the  submission ;  thus,  where  two 
parties  have  jointly  submitted  the  question  on  their  part, 

'  2  Barb.  Ch.,  430.  '  IG  Johns.,  205. 

»  12  Wend.,  377.  •  2  R.  S.,  544,  §  23 ;  20  Barb.,  262  ;  11 

'  20  Barb.,  481.  Paige,  529. 

*  2  Cai.,  320.  »  5  Paige,  575. 
'2  Wend.,  505:  12  Id.,  503;    15  Id.,    "  4  Denio,  348. 

293;  2  Hill,  387 ;   U  How.,  355.        "  8  Johns.,  125. 

•  15  Wend.,  103 ;  20  Barb.,  2G8.  "  1  Hill,  44. 

IL— 31 


242  ADMnriSTEATION  OF  CIVIL  JUSTICE. 

one  of  such  parties  alone  has  not  power  to  revoke  such 
submission.^  The  particular  form  of  the  revocation  is 
immaterial,  so  that  the  intention  is  clearly  expressed,  and 
must  have  been  understood  by  the  other  party  and  the 
arbitrators.^ 

The  statute  has  further  provided,  that  whenever  any 
submission  to  arbitration  shall  be  revoked  by  a  party 
thereto,  before  the  publication  of  an  award,  the  party  so 
revoking,  shall  be  liable  to  an  action  by  the  adverse  party, 
to  recover  all  costs,  expenses  and  damages  which  he  may 
have  incurred  in  preparing  for  such  arbitration.^  And  if 
the  submission,  so  revoked,  was  contained  in  the  condition 
of  any  bond,  the  obligee  in  such  bond  is  entitled  to  prose- 
cute the  same,  in  the  same  manner  as  other  bonds  with 
conditions  other  than  for  the  payment  of  money,  and  to 
assign  such  revocation  as  a  breach  thereof,  recovering  for 
such  breach,  as  damages,  his  costs  and  expenses  incurred, 
and.  the  damages  sustained  by  him  in  preparing  for  such 
arbitration.*  l^o  other  sum  to  be  recovered  for  any  such 
revocation,  except  as  above.^ 

The  arbitrators  and  umpire. 

The  powers  and  authority  of  a  person  acting  as  an 
arbitrator,  and  the  powers  and  authority  of  one  acting  as 
umpire,  are  widely  different.  Where  an  umpire  has  been 
appointed,  and  in  consequence  of  a  disagreement  of  the 
arbitrators,  has  entered  upon  the  performance  of  his  duties, 
the  authority  to  make  a  final  decision  on  all  the  matters 
embraced  in  the  submission,  is  vested  exclusively  in  him, 
and  the  original  powers  of  the  arbitrators  cease  to  exist. 
Such  umpire  is  not  bound  to  meet  or  consult  with  them  at 
all,  and  if  he  do  so,  their  action  or  advice  does  not  affect 
the  award ;  and  such  arbitrators  joining  in  the  award, 
act  as  mere  strangers,  and  their  action  is  superfluous  and 
unmeaning.^ 

It  is  otherwise  where  the  two  arbitrators,  being  unable 
to  agree,  are,  by  the  terms  of  the  submission,  authorized  to 
call  to  their  assistance  a  third  person  to  act  with  them.  In 
such  case,  the  authority  to  make  the  award  is  vested  in 


'  12  Wend.,  578.       '  »  2  R.  S.,  544,  §  25. 

'  1  Cow.,  335.  =  4  Duer,  318 ;  3  Burr.,  1474 ;  4  Taunt., 

'  2  R.  S.,  544,  §  23.  252  ;  9  Barn.  &  Cress.,  407  ;  2 

*  Idem,  §  24;  30  Barb.,  228;  7  Cow.,    Johns.  Ch.  R.,  339;  1  HiU,  489;  I 

622.  Barb.,  333. 


AEBITKATIOX.  243 

them  jointly,  and  the  award  must  be  shown  to  be  the 
result  of  their  joint  deliberations.  Notice  of  the  time  and 
place  of  every  meeting  for  consultation  thereon,  must  be 
given  to  each  ;  and  although  a  refusal  to  attend  by  one, 
might  not  vitiate  the  award  made  by  two  of  them,  yet  the 
third  must  have  been  notified  ;^  and  where  the  award  is 
made  by  all  who  have  authority  to  make  it,  its  execution 
being  in  its  nature  a  judicial  act,  the  better  opinion  seems 
to  be,  that  it  must  be  executed  by  all,  at  the  same  time 
and  place,  or  at  least,  in  the  presence  of  each  other.^ 

Where  the  submission  provides  for  the  appointment  of 
an  umpire,  in  case  the  arbitrators  shall  not  make  their 
award  in  season,  or  in  case  of  their  disagreement,  the 
umpire  may  be  appointed  at  any  time  within  which  he  is 
limited  to  act ;  and  it  will  not  be  necessary  to  show  any 
disagreement  on  the  part  of  the  arbitrators  before  the 
appointing  of  such  umpire.^ 

The  appointment  of  the  arbitrators,  and  the  authority 
to  appoint  an  umpire,  is  contained  in  the  submission. 
The  parties  to  the  submission  select  such  persons  as  they 
see  proper,  as  they  alone  are  the  judges  in  that  matter,  as 
to  the  competency  and  fitness  of  the  persons  selected. 
Any  defect  of  character  or  fitness  in  the  arbitrators 
selected,  if  known  to  the  parties  at  the  time  of  the  sub- 
mission, or  any  interest  they  may  have  in  the  subject 
matter  of  the  controversy,  if  likewise  known,  will  not  be 
regarded ;  although,  if  such  objections  to  the  arbitrators 
were  not  known  at  the  time,  or  if  thej  arose  subsequently, 
relief  might  be  granted.* 

The  authority  of  the  arbitrators  to  act  under  a  submis- 
sion, ceases  after  they  have  made  their  award.  Such  is 
the  case,  even,  where  thej'  have  made  a  void  award  ;  for, 
having  expressed  their  opinion  in  the  premises,  they  are 
no  longer  impartial  between  the  parties.*  So  also  their 
authority  ceases  when,  being  unable  to  agree,  they  have 
appointed  an  umpire^  in  accordance  with  their  authority 
in  the  submission.** 

Where  the  authority  to  appoint  an  umpire  is  contained 
iu  a  submission  under  seal,  the  appointment  of  the  umpire 

'4  Duer,   325;    3  Ad.   &  El.,  245;   5     »2  Johns.,  57 ;    1  Hill,  489;    1  Barb., 
Gran.  &  Man.,  374;    3  Barb.,  275;  325. 

7  Cow.,  290;  2  Wend.,  494.  *  1  Barb.,  336. 

*  4  Duer,  325 ;  13  Mees.  &  Wels.,  465  ;     '1  Barb.,  325 ;  4  N.  T.,  567. 

8  East,  319;    2  Id.,  244;    3  Term,     •  4  Duer,  318. 
38. 


244  adjViinistration  op  civil  justice. 

cannot  be  made  by  parol.  But  where  the  submission  is  by 
parol,  the  appointment  of  the  umpire  may  also  be  by  paroO 
The  testimony  of  the  arhitrators  cannot  be  received  lor 
the  purpose  of  contradicting  or  impeaching  their  award,^ 
except  in  cases  -where  their  powers  have  been  terminated 
by  the  appointment  of  an  umpire.^  But  they  may  be 
examined,  where  fraud  is  not  alleged,  for  the  purpose  of 
showing  that  matters  were  taken  into  consideration,  and 
embraced  in  their  award,  which  were  not  included  in  the 
submission ;  or  that  particular  matters  were  not  taken  into 
consideration.* 

Proceedings  on  the  submission,  notice,  &c. 

The  statute  provides  that  the  arbitrators  selected  shall 
appoint  a  time  and  place  for  the  hearing,  and  shall  ad- 
journ the  same  from  time  to  time  as  shall  be  necessary ; 
and  that  on  the  application  of  either  party,  and  for  good 
cause,  they  may  postpone  such  hearing  to  a  time  not 
extending  beyond  the  day  fixed  in  such  submission  for 
rendering  their  award.^  An  award  made  without  notice 
to  the  parties  of  the  hearing  would  be  void.^ 

Arhitrators  to  he  sworn.  Before  proceeding  to  hear  any 
testimony,  the  arbitrators  must  be  sworn,  faithfully  and 
fairly  to  hear  and  examine  the  matters  in  controversy, 
and  to  make  a  just  award,  according  to  the  best  of  their 
understanding;  and  such  oath  may  be  administered  by 
any  judge  of  any  court  of  record,  or  commissioner  of 
deeds,  or  by  any  justice  of  the  peace.'  The  above  provi- 
sion has  reference  to  arbitrations  under  the  statute.  At 
common  law  the  award  would  not  be  void  because  the 
arbitrators  were  not  sworn.  Nor  would  such  an  award 
be  void,  even  though  the  parties  intended  to  make  it 
effectual  under  the  statute,  so  long  as  it  was  good  as  a 
common  law  award.^  When  the  parties  permit  the  arbi- 
trators to  proceed  without  being  sworn,  they  cannot 
object  after  it  is  too  late  to  obviate  the  objection.^    The 


»  5  Weud.,  516;   23  Id.,  628.  *  3  Barb.,  275;  23  Wend.,  628;  6  Cow., 

=■12    Wend.,    212;    3   Paige,    124;    1  103;  8  Pet.,  178. 

Barb.,  326;   20  Id.,  482.  '' 2  R.  S.,  541,  §§  4  and  5;  L.  1843,  246. 

»  1  Barb.,  326.  *  1  Denio,  440 ;   24  Wend.,  258. 

•  20  Barb.,  410.  '  1  Barb.  Oh.,  173:  1  Denio,  440;  4  N. 

'  2  R.  S.,  541,  §  3;  2  N.  Y.  S.  at  L.,  Y.,  157;  24  Wend.,  258. 

560,  §  3. 


ARBITRATION^.  245 

provision  of  the  statute  requiring'  the  arbitrators  to  be 
sworn,  does  not  ai)ply  when  the  submission  is  by  parol.^ 

The  examination  of  witnesses^  <&c. 

Witnesses  may  be  compelled  to  appear  before  such 
arbitrators,  by  subpoenas,  issued  by  auy  justice  of  the 
peace,  in  the  same  manner,  and  with  the  like  effect,  and 
subject  to  the  same  penalties  for  disobedience,  as  in  cases 
of  trials  before  justices  of  the  peace.^  These  witnesses 
may  be  sworn  by  the  arbitrators,  or  any  of  them,  when 
the  proceeding  is  under  the  statute  ;^  otherwise,  where  it 
is  not,  as  where  the  submission  is  by  parol.^  And  where 
an  arbitrator,  who  is  not  authorized,  administers  the  oath, 
the  objection  is  not  waived  by  not  being  taken  at  the 
hearing.  Arbitrators  may  recall  witnesses  in  the  absence 
of  the  parties,  to  explain  testimony  about  which  the  arbi- 
trators differ.* 

The  hearing  of  the  arbitrators. 

Before  proceeding  with  the  hearing  of  the  cause,  the 
parties  must  be  duly  notified,  that  they  may  have  an 
opportunity  of  being  heard  in  relation  to  the  matters 
submitted ;  and  an  award  made  without  a  reasonable 
notice  of  the  time  and  place  for  the  hearing  to  the  losing 
party,  and  without  his  being  present,  is  void.^  The  arbi- 
trators are  authorized  to  determine  what  is  a  reasonable 
notice  to  be  thus  given,  and,  acting  in  good  faith,  their 
determination  will  not  be  reviewed.^  And,  after  an  award, 
such  notice  will  be  presumed,  and  the  party  impeaching 
must  prove  the  contrary.^ 

All  the  arbitrators  must  meet  together,  and  hear  the 
proofs  and  allegations  of  the  parties  ;  but  an  award  by  a 
majority  of  them  is  valid,  unless  the  concurrence  of  all  be 
expressly  required  in  the  submission.'^  All  the  arbitrators 
should  be  notified  of  the  time  and  place  of  hearing,  and 
they  must  meet  together  and  hear  the  i)roofs  and  allega- 
tions ;  and  where  it  does  not  appear  on  the  face  of  the 
award  that  they  did  thus  meet,  &c.,  such  fact  may  be 
proved,  aliunde.^    Or  when  they  have  all  met  and  heard 


•  4  Denio,  347.  »  23  Wend.,  628. 

*  2  R.  S.,  541,  §  6.  "1  HilL  489;   1  Barb.,  325. 

•L.  1843,  246;  2  N.  Y.  S.  at  L,  560,     '  2   R.  S.,  542,  §  9 ;  4  N.  Y.,  56T ;  1 
561;  5  How.,  315.  Hilt.,  471. 

♦  1  Johns.  Ch.,  101.  •  7  Cow.,  290;  3  Sandf.,  405. 


246  ADMINISTRATION  OF  CIVIL  JUSTICE. 

the  case,  and  then  adjourned  for  making  their  decision, 
and  one  is  absent  at  the  time  appointed  for  making  their 
decision,  the  other  two  may  proceed  and  make  the  award.^ 
The  arbitrators  must  act  in  good  faith,  and  not  be  guilty 
of  any  irregularity  in  their  proceedings.  In  general,  they 
are  the  judges  of  what  is  jjroper  testimony  to  be  received 
by  them  on  the  hearing,  and  they  are  not  confined  to  the 
strict  rules  of  evidence  applicable  to  the  trials  of  issues 
before  the  court.  They  may  hear  the  statement  of  the 
parties  themselves.^  They  must  not,  however,  refuse  to 
hear  testimony  which  is  pertinent  and  material,  and  which 
is  offered  by  either  of  the  parties.^ 

The,  award. 

The  award,  to  be  binding  so  as  to  be  enforced  according 
to  the  provisions  of  the  statute,  must  be  in  writing,  sub- 
scribed by  the  arbitrators  making  the  same,  and  attested 
by  a  subscribing  witness.^ 

In  the  absence  of  such  a  requisition  in  the  submission, 
it  is  not  requisite  that  all  the  arbitrators  should  concur  in 
the  decision  of  every  question  arising  as  to  the  admission 
of  evidence.  If  all  hear  the  cause  and  join  in  the  award, 
it  will  be  sufficient.^ 

Where  the  three  arbitrators  could  not  agree  as  to  the 
sum  to  be  awarded,  and  they  added  their  different  esti- 
mates together  and  divided  the  sum  by  three,  and  then 
awarded  the  result,  it  was  held  that  such  irregularity  was 
cured  by  their  assent  to  the  result,  which  they  awarded  as 
manifested  in  signing  their  award.^ 

The  award  must  be  made  in  piu'suance  of  the  authority 
contained  in  the  submission,  and  whenever  that  authority 
is  terminated,  the  further  power  to  make  an  award  is  at 
an  end.  Thus,  where  the  arbitrators  had  declined  acting, 
or  had  resigned  before  making  their  award,  and  their  resig- 
nation had  been  accepted,  any  award  made  by  them 
afterwards  would  be  void.'  So,  where  they  had  made  and 
delivered  an  award,  declaring  the  amount  to  be  due,  and 
subsequently  met  again  and  made  a  new  award,  the  second 
award  was  void :  it  was  held,  in  an  action  on  the  second 
award,  that  the  arbitrators  had  no  power  to  make  it  f  they 


'  3  Sandf.,  405.  ^  3  Paige,  124. 

"  21  Barb.,  382.  ^  Hoff.,  110 ;  4  Johns.,  487. 

»  2  R.  S.,  542,  §  10 ;  17  Johus.,  406.         ^  2  Wend.,  602. 

«  2  R.  S.,  542,  §  8.  U  N.  Y.,  568. 


AEBITKATIOF.  247 

had  exhausted  all  their  authority  and  power  in  making  the 
first  award. 

An  award  under  the  statute.  The  provisions  of  the  Eevised 
Statutes  in  respect  to  arbitrations  have  not  abrogated  the 
common  law,  but  have  left  the  parties  to  proceed  as  before 
the  statute,  except  where  the  award  is  to  be  enforced, 
vacated  or  corrected,  in  the  manner  pointed  out  by  stat- 
ute.^ And  if  the  parties  do  not  begin  under  the  statute, 
their  subsequent  proceedings  cannot  be  aided  or  injured 
thereby.'^  Under  the  statute,  the  parties  cannot  authorize 
an  award  on  matters  arising  after  the  submission.^ 

Whe7i  the  aioard  must  he  made. 

The  submission  determines  the  time  within  which  the 
award  must  be  made;  and  it  must  be  made  within  the 
time  therein  limited,*  unless  the  time  be  enlarged  by  a 
subsequent  agreement  f  and  where  no  time  is  fixed  by  the 
submission,  it  may  be  fixed  by  a  subsequent  agreement.^ 
It  may  also  be  fixed  by  implication,  as  where  the  sub- 
mission did  not  fix  the  time  for  making  the  award,  but 
provided  that  the  party  who  should  be  found  indebted 
should  pay  by  a  certain  day;^  and  no  time  being  fixed,  it 
must  be  made  within  a  reasonable  time,  if  requested  by  a 
party.^ 

The  making  of  an  award  being  a  judicial  act  in  its 
nature,  it  would  be  void  if  made  and  published  on  Sun- 
day ;^  although,  if  carried  into  effect  by  subsequent  acts, 
such  acts  would  be  deemed  valid. 

Where  the  award  bore  date  on  the  day  after  the  time 
within  which  it  was  to  be  made,  according  to  the  submis- 
sion, and  was  not  delivered  until  the  day  of  its  date,  and 
there  was  no  other  evidence  as  to  when  it  was  actually 
made,  it  was  presumed  that  the  arbitrators  performed  their 
duty,  and  had  the  award  ready  within  the  time  fixed. 
The  mere  date  at  the  end  of  the  paper  was  not  deemed 
enough  to  establish  the  contrary.^" 

The  award  need  not  be  delivered  within  the  time  limited 
for  the  making  thereof,  if  it  is  made  and  ready  to  be 


•  15  Wend.,  99;  2  Hill.,  271,  "  22  Wend.,  125. 
»  4  Denio,  347.  '  5  How..  315. 

*  Idem,  249.  «  22  Wend.,  126, 

♦  2  R.  S.,  541,  §  3.  "8  Cow.,  27. 

•  2  Paige,  575  ;  2  Edw.,  452  ;  22  Wend.,  "  23  Barb.,  187. 

125  ;  5  How.,  315. 


248  ADMTNISTEATION  OF  CIVIL  JUSTICE. 

delivered  on  payment  of  the  fees  of  the  arbitrators,  it  is 
ready  to  be  delivered  within  the  legal  meaning  of  the  sub- 
mission.^ But  the  award  must  be  in  writing,  and  ready 
within  the  time  limited  to  be  delivered  to  the  parties.  A 
readiness  to  deliver  to  one  party  is  not  sufiicient.*  It 
should  be  prepared  in  two  separate  i^arts,  that  each  party 
might  have  the  award  within  the  time  limited.^  This  may 
be  excused  or  waived  by  the  parties,  or  either  of  them,  by 
telling  the  arbitrators  they  need  make  no  counterpart,  for 
he  would  not  receive  it,  &c.^ 

By  ivhom  made.  The  award,  if  not  under  the  statute, 
must  be  made  by  the  concurrence  of  all  the  arbitrators, 
unless  it  is  otherwise  provided  in  the  submission.  This  is 
upon  the  principle,  that  where  there  is  a  delegation  of 
power  to  several  individuals  for  private  purposes,  the  con- 
currence of  all  is  necessary  to  the  proper  exercise  of  such 
power.^  But  where  the  submission  is  under  the  statute, 
a  majority  of  the  arbitrators  have  authority  to  make  the 
award,  unless  the  submission  require  otherwise.^ 

Where  the  submission  provided  that  the  decision  of  the 
majority  of  the  arbitrators  should  be  binding,  and  the  bond 
executed  under  such  submission  provided  that  the  award 
should  be  subscribed  by  the  arbitrators,  it  was  held  that 
the  submission  and  bond  should  be  taken  together,  and 
that  the  award  signed  by  two  of  the  three  arbitrators  was 
valid.'^ 

If  the  submission  provides,  that  in  case  the  arbitrators 
cannot  agree,  they  shall  choose  a  third  person  to  arbitrate 
in  conjunction  with  them,  and,  upon  not  agreeing,  such 
third  person  was  chosen,  he  becomes  one  of  the  arbitrators, 
and  must  act  with  them ;  but  in  such  case,  the  award, 
signed  by  two  of  the  arbitrators,  was  held  suflScient.^  The 
mode  of  appointing  the  arbitrators  shows  that  the  concur- 
rence of  two  was  to  be  deemed  sufficient. 

Where  the  submission  provides,  that  in  case  the  arbitra- 
tors cannot  agree,  they  are  to  choose  an  umpire  who  is  to 
decide,  and  such  umpire  is  chosen,  the  authority  of  the 
arbitrators  is  at  an  end,  and  the  award  is  to  be  made  by 


'  3  Barb.,  57.  Johns.,  39 ;    4  Denio,  347  ;    see  23 

«  1  Hill,  321 ;  6  Johns.,  14.  Barb.,  304. 

»  10  Johns.,  144;  15  Id.,  197.  '  2  R.  S.,   542,  §  7  ;    4  N.  Y.,  567  ;    3 

*  See  1  Hill,  322.  Sandf.,  405. 

"  I  Bos.  &  P.,   23G;    3  Term,  592;   6    M  Hilt,  469. 

•  13  Johns.,  187. 


AEBITEATION.  249 

the  umpire.^  The  award,  however,  will  neither  be  aided 
or  injured  by  the  fact  that  the  arbitrators  advised  with 
him,  or  even  signed  the  award  with  him.^ 

The  authority  of  the  arbitrators  in  making  their  aioard. 

As  their  whole  authority  to  act  in  the  premises  is  derived 
from  the  submission,  the  award  must  be  limited,  in  its 
findings  and  requisitions,  to  the  matters  submitted.  Thus, 
where  the  submission  provided  that  A.  should  deliver  his 
receipt  in  full,  and  G.  his  note  for  five  hundred  dollars, 
to  the  arbitrators,  and  that  the  arbitrators  should  ascertain 
the  damages  of  A.,  and,  by  indorsement,  if  necessary, 
reduce  the  note  accordinglj'-,  and  then  deliver  the  note 
and  receipt  to  the  respective  parties ;  and  A.  appeared  and 
gave  evidence  before  the  arbitrators,  but  G.  did  not  appear, 
the  arbitrators  awarded  that  G.  should  pay  to  A.  five  hun- 
dred dollars  damages,  to  be  paid  in  money.  It  was  held 
that  such  an  award  was  unauthorized ;  that  the  parties 
having  neglected  to  deliver  the  note  and  receipt  according 
to  the  submission,  it  was  a  mutual  abandonment  of  the 
agreement,  and  the  arbitrators  had  acted  without  autho- 
rity.^ So  also,  where  there  was  a  submission  as  to  the 
change  in  the  cost  of  a  building  constructed  by  the  jjlain- 
tiff  under  a  contract,  by  reason  of  a  deviation  from  the 
original  i)lan,  it  was  held,  that  an  allowance  by  the  arbi- 
trators for  defects  in  other  parts  of  the  building  than  those 
comprised  in  the  deviations,  was  in  excess  of  their  powers, 
and  that  such  an  award  would  be  void.^ 

But  where  the  matter  awarded  is  such  as  necessarily 
pertained  to  the  determination  contemplated  by  the  sub- 
mission, as,  where  the  submission  was  of  sundry  contro- 
versies touching  division  fences,  and  sundry  roads  and 
paths ;  and  the  award  directed  the  conveyance  by  one 
party,  of  a  piece  of  salt  meadow,  known  as  "  A.'s  road," 
it  was  held  that  the  award  was  authorized,  it  being  appa- 
rent that  the  meadow  must  be  one  of  the  roads  referred 
to  in  the  submission.^  It  is  also  held,  that  the  poAver  to 
award  costs  is  necessarily  incident  to  the  general  authority 
of  the  arbitrators  to  determine  the  matters  in  controversy.^ 
But  the  successful  party  will  not  be  entitled  to  costs,  unless 


UDiier,  318.  ♦  2  Cai.,  320. 

»  9  Barb.,  246.  •  1  Hill,  319. 

»7  Hill,  329;  1  Barb.,  325. 

II.— 32 


250  ADMUriSTEATIOl?'  OF   CIVIIi  JUSTICE. 

either  the  agreement  to  submit  to  arbitration  expressly 
impose  them,  or  the  arbitrators,  under  implied  authority 
from  the  terms  of  the  submission,  expressly  award  them  ;^ 
although,  if  the  submission  be  under  the  statute,  they  will 
not  be  authorized  to  award  against  a  party,  the  costs  and 
expenses  of  the  arbitration,  unless  the  submission,  in 
express  terms,  authorizes  it.^  If  the  subject  of  the  contro- 
versy is  an  action  then  pending  in  court,  the  arbitrators 
may  award  as  to  the  costs  of  such  action,  without  any 
express  authority  for  that  purpose.^ 

An  award  requiring  a  third  party  or  stranger  to  do  an 
act  which  it  does  not  appear  the  party  can  control,  as,  that 
tenants  should  be  caused  to  give  up  possession  of  land, 
is,  to  that  extent,  void.^  So  also  an  award  that  the  sum 
claimed  is  due  to  the  claimant  from  a  third  party,  who  is 
a  stranger  to  the  submission,  is  not  valid.* 

It  must  he  complete. 

The  awurd  must  embrace  all  matters  submitted  to  the 
arbitrators.  Where  the  submission  is  made  conditional 
by  the  ita  quod  clause,  and  recite  several  distinct  matters 
which  are  specifically  submitted,  and  the  arbitrators  omit 
to  decide  one  of  the  matters,  there  being  no  general  words 
in  the  award  which  can  be  construed  to  embrace  a  decision 
on  such  matter,  the  whole  award  will  be  void.^  The  rule  is 
invariable  where  the  submission  is  special,  and  the  bond 
of  submission  contains  the  ita  quod  clause,  unless  the 
award  comprehend  all  the  matters  submitted,  it  will  be 
void  f  and  where  the  submission  is  general,  though  the 
award  may  be  presumed  to  cover  all  that  was  brought 
before  the  arbitrators,  yet  where  it  appears  on  the  face  of 
the  award,  that  the  arbitrators  had  notice  of  a  matter  and 
refused  to  decide  it,  the  award  would  be  void.^ 

The  award  will  be  presumed  to  be  complete,  and  to  cover 
the  whole  matter  brought  before  them,  unless  the  contrary 
appear.  Thus,  where  the  submission,  dated  the  first  of 
December,  1842,  was,  that  the  arbitrators  award :  1.  The 
amount  which  had  been  paid  on  a  certain  contract,  and  to 
indorse  it  on  the  contract ;  2.  All  other  matters  in  contro- 


ni   How.,   21;  22  Wend.,    125;    4    *  12  N.  T.,  9. 

Denio,  249.  *  5  N.  Y.,  485 ;  14  Johns.,  96. 

"  4  Denio,  249.  *  5  Cow.,  197. 

»  13  Johns.,  264. 


AEBITKATIOIf.  251 

versy ;  and  the  award  recited  that  the  arbitrators  had 
heard  the  proofs  and  allegations  of  the  parties,  and  exam- 
ined the  matters  in  controversy  submitted  to  them  ;  and 
as  to  the  first  point,  they  awarded,  by  indorsement  on  the 
contract,  that  "  the  whole  amount  which  has  been  paid 
actually,  on  the  within  contract,  up  to  January  1,  1841,  is 
$530.62 ;"  it  was  held,  that  it  must  be  intended  that  there  was 
no  evidence  before  the  arbitrators,  of  any  payments  on  or 
after  the  1st  of  January,  1841,  and  that  the  award  embraced 
all  payments  up  to  the  date  of  the  submission.^  Where  the 
recitals  in  the  award  show  that  the  whole  subject  embraced 
in  the  submission  had  been  considered  and  acted  upon,  it 
will  be  sufficient.^ 

The  mvard  must  de  certain  to  a  common  intent.'  It  must 
be  so  certain  that  each  party  can  know  precisely  what  he 
is  required  to  do,  and  what  he  has  a  right  to  require  of  the 
other  party.*  It  is  sufficiently  certain  for  the  adjustment 
of  a  loss,  if  data  are  given  from  which,  by  calculation,  it 
can  be  rendered  certain.^  So,  where  the  award  shows  the 
legal  liability,  and  fixes  the  amount,  it  is  sufficient,  though 
it  does  not  expressly  charge  the  party  with  the  payment 
thereof.^ 

A  thing  extrinsic,  ordered  to  be  done  by  an  award,  where 
it  may  be  certain,  is  intended  to  be,  until  the  contrary 
appear.  Thus,  where  the  submission  is  of  partnership  mat- 
ters, and  the  award  requires  one  party  to  pay  the  partner- 
ship debts,  it  is  sufficiently  certain.'^ 

When  there  is  necessarily  an  uncertainty  as  to  what 
would  be  a  comx)liance  with  its  requirements,  it  would  be 
bad.  Thus,  an  award  directed  that  A.  should  pay  a  cer- 
tain sum,  and  that  if  he  gave  B.  good  and  sufficient 
security  for  the  payment,  possession  was  to  be  delivered 
to  him.  It  was  held  that  the  provision  for  the  security 
was  bad,  for  uncertainty,  in  not  defining  the  nature  and 
extent  of  the  security  to  be  given ;  but  A.'s  title  being 
admitted,  he  might  recover  without  tender  of  security.* 
So,  where  it  does  not  definitely  require  the  performance 
of  the  act,  &c.,  as,  where  the  award  directed  that  if  V. 
should  keep  the  stove,  he  should  pay  S.  fifty  shillings  for 


'  5  N.  T.,  482  ;  19  Wend.,  288  ;  2  HOI,  '  3  Johns.  Cas.,  534. 

75  ;  2  Johns.  Ch.,  276 ;  8  East,  450.  *  16  Barb.,  576. 

•8N.  Y..  160.  '2  Hill,  75. 

*  1  Cai.,  304  ;  14  Jolms.,  96.  •  9  Johns.,  43. 

♦  2  Cai.,  235. 


252  ADMINISTRATION  OF  CIVIL  JUSTICE. 

it,  &c.^  So,  where  there  is  nothing  described  to  which 
the  act  or  order  can  apply,  as,  that  the  one  party  should 
deliver  to  the  other  "  his  right  and  claim  to  the  said  farm," 
when  no  farm  was  mentioned  in  the  submission  or  in  the 
previous  part  of  the  award.^  But  if  the  award  definitely 
refers  to  extrinsic  circumstances  by  which  it  may  be  made 
certain,  as  to  its  requirements,  it  will  be  sufficient.^ 

It  viust  be  final.  Its  order  must  be  such  that,  if  obeyed, 
the  matter  awarded  upon  between  the  parties  will  be 
finally  settled.  Thus,  where  a  suit  is  submitted  to  arbi- 
tration, the  arbitrators  must  not  only  determine  the 
amount  of  damages  to  be  paid,  with  the  costs,  but  they 
should  also  direct  the  suit  to  be  discontinued.*  So,  where 
it  directs  money  to  be  paid  as  the  price  or  value  of  certain 
stock,  it  should  also  provide  for  a  transfer  of  such  stock.^ 

The  award  must  also  he  mutual.  But  an  award  ordering 
the  payment  of  a  sum  of  money,  carries  in  itself  a  mutu- 
ality, as  it  must  be  held  to  be  in  satisfaction  of  the  matter 
submitted  f  and  is  no  objection  that  one  is  to  perform  on 
his  part,  before  the  other  is  to  execute  the  release,  where 
other  matter  is  awarded  to  be  done  by  the  latter,  independ- 
ent of  the  release.'  And  to  make  an  award  binding,  it  is 
not  necessary  that  all  the  parties  upon  one  side  be  bound 
by  the  submission,  as,  where  a  submission  is  executed  by 
a  partner  in  the  name  of  his  firm,  without  authority  to 
do  so.^ 

The  form  of  the  award.  Under  the  statute,  the  award  is 
good  provided  it  be  executed  by  a  majority  of  the  arbitra- 
tors, and  attested  by  a  subscribing  witness,  unless  the 
concurrence  of  all  be  required  in  the  submission.^  There- 
fore, where  the  submission  requires  the  award  to  be  in 
writing,  to  be  subscribed  by  the  arbitrators,  or  any  two 
of  them,  and  to  be  attested  by  a  subscribing  witness,  an 
award  signed  by  the  three  arbitrators,  with  a  witness  to 
the  signature  of  two  of  them,  will  be  intended  to  be  the 
award  of  the  two  and  not  of  the  other.'"  And  where 
the  award  is  made  by  two  of  the  three  arbitrators,  it  is  not 
necessary  that  the  award  should  show  that  all  met  and 
heard  the  arbitration  ;  such  fact  may  be  proved  alimuW^ 


'  2  Cai.,  235.  « 3  Cai.,  253. 

«  3  Cow.,  70.  '  Cai.,  320. 

'See    14  Johns.,    96;  2   Hill,  75:  23     M 5  Barb.,  524. 
Barb.,  187.  '  »  2  R.  S.,  542,  §  7. 

♦  14  Johns.,  302.  '"  4  Barb.,  250;   5  N.  T.,  482. 

•  4  Deaio,  195 ;  2  Cow.,  649.  "  1  Cow.,  290;  3  Sandf.,  405. 


AKBITRATION.  253 

Nor  is  it  necessary  that  the  award  show  upon  its  face  that 
the  parties  had  notice  of  the  hearing.^ 

The  award  must  be  in  form  according  to  the  require- 
ments of  the  submission.  Where  the  submission  provides 
that  the  award  shall  be  in  writing,  under  the  hands  and 
seals  of  the  arbitrators,  an  award  in  writing  signed  by, 
but  not  under  the  seal  of  the  arbitrators  is  bad.^  But 
the  award  need  not  be  sealed  unless  the  submission  stipu- 
lates that  it  be.  The  mere  fact  that  the  submission  is 
under  seal  does  not  make  any  difference.^  So,  where 
the  submission  is  merely  oral,  without  providing  that  the 
award  shall  be  in  writing,  a  verbal  award  is  valid  ;*  and 
it  has  been  held  that  where  the  submission  required  the 
award  to  be  in  writing,  and  to  be  subscribed  by  the  arbitra- 
tors, that,  the  parties  could  orally  authorize  the  arbitrators 
to  render  a  parol  award.^ 

The  interpretation  oftlie  aivard.  There  are  certain  well 
settled  rules  of  interpretation  to  be  observed  in  the  con- 
struction of  awards;  as,  the  award  is  to  be  liberally 
construed  in  order  to  the  upholding  thereof;*^  as,  that  a 
misrecital  may  be  disregarded  ;^  or,  a  variance,  where  the 
intent  and  meaning  is  obvious.^  So,  likewise,  the  pre- 
sumption is  against  the  supposition  that  the  arbitrators 
have  exceeded  the  powers  granted  by  the  submission.^ 
Where  there  are  irreconcilable  contradictions  between  the 
several  parts  of  an  award,  the  first  part  is  to  prevail  over 
the  latter.^" 

The  effect  of  a  void  part  of  an  aivard.  Where  the  award 
is  good  in  part  and  bad  in  part,  if  the  parts  are  dependent 
upon  each  other,  the  award  is  wholly  vitiated.  Thus, 
where  the  award  is  void  in  one  particular,  and  that  particu- 
lar is  the  only  act  which  the  party  is  required  to  perform, 
and  constitutes  the  consideration  intended  for  the  act  the 
other  party  is  required  to  x>erforra,  the  whole  award  is 
void."  But  where  the  void  part  is  not  necessarily  con- 
nected with  the  parts  which  are  valid,  and  does  not 
necessarily  affect  the  justice  of  the  case,  the  award  is  void 
only  pro  tantoP     So  a  i)ortion  of  the  award  deciding  mat- 


■  1  Barb.,  325.  '  11  Johns.,  103. 

*  11  Johns.,  133.  "3  Saiidf.,  405. 

*  23  Barb.,  187.  *  13  Johns.,  27;  Kyd.,  170. 

*  2  Barb.  Ch.,  430.  "  2  Cow.,  638. 

*  20  Barb.,  481.  "  22  Wend.,  125;  2  Cai.,  235. 

*  14  Johos.,  9G.  "  2  Cow.,  038  ;  U  Johns.,  96, 


264  ADMINISTKATION  OF  CIVIL  JUSTICE. 

ters  not  submitted,  is  of  no  effect,  and  may  be  rejected,  as 
where  the  award  found  the  sum  due,  and  directed  that 
a  general  release  should  be  executed ;  the  clause  as  to  the 
release,  not  being  included  in  the  submission,  may  be 
rejected.^ 

The  effect  of  the  award.  When  the  submission  is  of  a 
particular  matter  in  controversy  between  the  parties,  an 
award  thereon  can  only  extend  to  such  matter;  and  a  valid 
award  will  be  a  bar  to  any  action  for  the  original  cause 
thus  submitted  f  and  it  is  not  necessary  that  the  award 
shall  have  been  performed.'  If  the  submission  is  general, 
of  all  demands  which  either  party  has  against  the  other, 
the  award  made  in  pursuance  of  such  submission  would 
bar  an  action  for  any  demand  existing  at  the  time  of  the 
submission.* 

JProceedings  after  the  award,  under  the  statute.     Confirmation  of 
the  award,  and  judgment  thereon. 

The  statute  provides  that  upon  such  submission  being 
proved  by  the  affidavit  of  a  subscribing  witness  thereto, 
and  upon  the  award  made  in  pursuance  thereof  being 
proved  in  like  manner,  or  by  the  affidavit  of  the  arbitra- 
tors, within  one  year  after  the  making  of  the  same,  the 
court  designated  in  such  submission  shall,  by  rule,  in  open 
court,  confirm  such  award,  unless  the  same  be  vacated,  or 
modified,  or  a  decision  thereon  be  postponed,  as  provided 
by  the  statute.^ 

Upon  the  confirmation  or  modification  of  such  award, 
the  court  proceeds  to  render  judgment  in  favor  of  the 
party  to  whom  any  sum  of  money  or  damage  is  therein 
awarded  ;  and  if  the  award  orders  any  act  to  be  done  by 
either  party,  then  judgment  is  entered  that  such  act  be 
done  according  to  such  order.^  The  costs  of  the  proceed- 
ings are  taxed  as  in  suits ;  and  if  no  provision  for  the  fees 
and  expenses  of  the  arbitrators  have  been  made  in  the 
award,  the  court  makes  an  allowance  the  same  as  for 
referees ;  but  no  costs  must  be  taxed  for  any  other  services 
or  expenses  prior  to  such  application.' 


'  15  Barb.,  524.  '  2  R.  S.,  542,  §9:6  HilL  304. 

'  6  N.  T.,  44;   1  Hill,  69.  •  2  R.  S.,  §  43 ;   §  14. 

'  12  N.  Y.,  9.  '  Idem,  §  14;  21  N.  Y.,  149 ;  4  Denio, 

« 12  Johns.,  311.  252. 


AEBITEATION.  255 

Proceedings  to  vacate  an  award.  The  statute  proTides  that 
any  party  complaining  of  such  award,  may  move  the  court 
designated  in  the  submission,  to  vacate  the  same  upon 
either  of  the  following  grounds :  1.  That  such  award  was 
procured  by  corruption,  fraud,  or  other  undue  means  ;  2. 
That  there  was  evident  partiality  or  corruption  in  the 
arbitrators  or  either  of  them ;  3.  That  the  arbitrators 
were  guilty  of  misconduct,  in  refusing  to  postpone  the 
hearing,  upon  sufficient  cause  shown ;  or  in  refusing  to 
hear  any  evidence,  pertinent  and  material  to  the  contro- 
versy, or  any  other  misbehavior,  by  which  the  rights  of 
any  party  has  been  prejudiced ;  or,  4.  That  the  arbitrators 
exceeded  their  powers,  or  that  they  so  imperfectly  executed 
them  that  a  mutual,  final  and  definite  award  on  the  subject 
matter  submitted,  was  not  made.^ 

These  provisions  of  the  statute  for  proceedings  to  vacate 
an  award,  have  reference  only  to  an  award  made  in  a  case 
where  the  submission  was  under  the  statute,^  although 
the  statute  has  not  changed  the  law  as  to  the  power  of  the 
court  to  set  aside  an  award  for  partiality  or  corruption  on 
the  part  of  the  arbitrators,^  or  in  cases  where  the  parties 
have  not  had  an  opportunity  of  being  heard.* 

The  court  will  not  interfere  where  the  arbitrators  have 
committed  an  error  only  in  respect  to  the  law  or  fact. 
The  court  will  not  look  into  the  merits  of  the  controversy 
for  the  purpose  of  determining  what  the  award  should 
have  been.^  It  was  the  intention  of  the  legislature  to  give 
relief  in  cases  of  corruption  or  improper  conduct  on  the 
part  of  the  arbitrators  or  parties,  or  where  there  was  a 
want  of  jurisdiction,  or  where  the  award  was  not  final.^ 

The  award  may  also  be  modified  or  corrected,  on  motion 
of  a  party  to  the  submission,  made  to  the  court  designated 
therein,  in  the  following  cases  :  Where  there  is  an  evident 
miscalculation  of  figures,  or  an  evident  mistake  in  the 
description  of  any  person,  thing  or  property  referred  to  in 
such  award  ;  or  where  the  arbitrators  have  awarded  upon 
some  matter  not  submitted  to  them,  not  aftecting  the  merits 
of  the  decision  upon  matters  submitted  ;  or  where  the 
award  is  imperfect  in  some  matter  of  form,  not  affecting 


'  2  R.  S.,  542, "8  10;   2  N.  Y.  S.  at  L.,  *  3  Barb.,  275. 

561  ;  4  N.  Y.,  568.  »  5    Cow.,    425  ;    24    Barb.,    147  ;    10 
'  9  Johns.,  213 ;  7  Hill,  331 ;  3  Sandf.,  4.  Wend.,  589. 

» 10  Wend.,  589 ;  17  Id.,  413.  •  Per  Savage,  C.  J.,  10  Wend.,  591. 


256  ADMIXISTEATION  OF  CIVTL  JUSTICE. 

the  merits  of  the  controversy  ;  and  where,  had  it  been  a 
verdict,  such  defect  could  have  been  amended  or  disre- 
garded by  the  court,  according  to  the  i)rovisions  of  law.^ 

The  application  to  vacate  or  modify  an  award  as  above, 
must  be  made  to  the  proper  court,  at  the  next  term  after 
the  publication  of  such  award,  upon  the  same  notice  to  the 
adverse  party  as  in  other  cases  of  special  motions,  if  there 
be  time  for  that  purpose ;  and  if  there  be  not  time,  such 
court,  or  any  judge  thereof,  may,  upon  good  cause  shown, 
order  a  stay  of  x>roceedings  on  such  award,  either  abso- 
lutely or  upon  such  terms  as  appear  just,  until  the  term 
of  the  court  next  after  such  first  term.^  This  application 
is  made  at  special  term,^  and  may  be  founded  upon  the 
submission  and  award,  and  also  upon  the  afiQdavits  of 
the  parties  or  of  the  arbitrators.* 

The  poiver  of  the  court,  on  such  application.  The  court 
may  jjroceed,  on  such  application,  to  vacate  such  award 
in  any  of  the  specified  cases  ;  and  where  the  time  within 
which  the  award  must  be  made  will  permit,  the  court,  in 
its  discretion,  may  direct  a  rehearing  by  the  arbitrators. 
The  court  may  also,  in  the  specified  cases,  modify  and 
correct  the  award  so  as  to  effect  the  intent  thereof,  and  to 
promote  justice  between  the  parties.^ 

After  a  judgment  is  entered  upon  an  award,  as  provided 
by  statute,  a  record  of  such  judgment  is  to  be  made.  This 
record  must  commence  with  a  memorandum  reciting  the 
submission  ;  then  stating  the  hearing  before  the  arbitra- 
tors ;  next,  their  award  ;  then  the  proceedings  of  the  court 
thereupon,  in  modyfying  and  confirming  the  same ;  and 
the  judgment  of  the  court  for  the  recovery  of  the  debt  or 
damages  awarded,  and  that  the  parties  perform  the  acts 
ordered  by  the  award,  and  for  the  recovery  of  the  costs 
allowed.^ 

This  record  must  be  filed  and  docketed,  the  same  as 
records  of  judgments  in  other  cases  ;  and  they  are  to  have 
the  same  force  and  effect  in  all  respects ;  be  subject  to  all 
the  provisions  of  law  in  relation  to  judgments  in  actions, 
and  may,  in  like  manner,  be  removed  and  reversed  (by 
writ  of  error)  for  error ;  and  execution  against  property 
or  persons,  issues  upon  the  same  as  upon  other  judgments.'' 

'  2  R.  S.,  542,  §  11 ;  4  N.  T.,  568  ;   21  *  4  Denio,  194;    see  also  3  Paige,  124, 

Id.,  149;    7  Barb.,  431;    17  Wend.,  12  Wend.,  212 

,     *12.  i  2  R.  S..  543,  §  13. 

'  2  R.  S.,  542,  §  12.  "Idem,  §15. 

Supreme  Court,  Rule  40,  of  1858.  '  Idem,  ij  IG. 


ARBITRATION.  257 

It  is  to  be  understood  that  the  foregoing  is  a  method  of 
proceeding  where  the  submission  was  made  under  the  pro- 
visions of  the  statute,  which  thus  authorizes  a  judgment 
to  be  summarily  entered  upon  the  award.  There  are, 
however,  a  class  of  cases,  not  under  the  statute,  where  judg- 
ment may  be  entered  upon  the  award.  Thus,  where  there 
is  an  agreement  to  refer  a  matter  in  suit,  then  pending,  to 
arbitrators,  and  that  a  judgment  iu  the  action  shall  be 
entered  according  to  their  decision,  this  Avill  justify  the 
entry  of  such  judgment,  and  it  will  be  binding  upon 
the  parties  as  a  judgment  by  consent.'  So  where  the 
parties  refer  a  matter,  not  referable  under  the  statute,  to 
referees,  either  by  stipulation  or  rule  of  court,  authorizing 
a  judgment  to  be  entered  according  to  the  finding  of  the 
referee,  such  judgment  may  be  entered  and  will  be  bind- 
ing.* 

Appeals^  &c. 

Formerly  the  remedy  for  reviewing  a  judgment  on  an 
award  under  the  statute,  was  by  writ  of  error,^  But  now 
the  remedy  of  the  aggrieved  party  is  by  appeal  under  the 
Code,  the  same  as  in  actions.* 

When  the  appeal  is  brought,  the  appellant  should  cause 
to  be  filed  certified  copies  of  the  original  papers  used 
upon  the  application  in  relation  to  the  award,  such  as 
the  original  affidavits,  and  also  of  all  other  affidavits  and 
papers  relating  to  such  application,  and  these  papers 
should  form  a  part  of  the  return.^  Any  objections  to 
informalities  of  the  proceedings  not  affecting  the  merits 
should  be  taken  in  the  court  below,  or  it  will  be  too  late  to 
take  advantage  of  them.  The  party,  while  in  the  court 
below,  should  submit  his  objections  iu  writing  to  the 
court,  then  they  can  be  certified  and  returned  with 
the  other  papers.^ 

An  appeal  also  lies  upon  an  order  vacating  an  award, 
the  same  as  upon  other  orders  in  courts.  And  certified 
copies  of  the  order,  and  of  all  affidavits  and  papers  used 
on  such  application,  are  to  be  used  on  such  appeal ;  and 
if  such  order  shall  be  reversed  in  the  api)ellate  court, 
the  proceedings  may  be  remitted  to  the  court  from  which 

•  11  Paige,   529;    12  Wend.,    212;    IG    *  Code,  §§  8,  323,  333  to  348,  457,471; 

Barb.',  578.  L.,  1854,  592;  24  Barb.,  149. 

»  13  Wend.,  293;  19  Id.,  21,  108.  *  2  R.  S.,  543,  §  17. 

•  2  R.  S.,  643,  §  16.  •  6  Hill,  303,  307. 

II.— 33 


258  ADMINISTKATION   OF   CIVIL   JUSTICE. 

the  judg-ment  was  taken  to  proceed  thereon  ;  or,  the  appel- 
late court  may  proceed  theieon,  after  due  notice  to  the 
l>arty  c()mphiinin<j^  of  such  award,  to  modify  or  confirm 
tlie  same,  in  the  same  manner,  and  with  the  lilic  etfect, 
as  if  the  application  for  that  purjjose  had  been  originally 
made  in  such  court.^ 

To  wJiat  court  the  appeal  is  take??.. 

From  the  judgment  of  the  county  court,  or  from  that 
of  the  mayor's  or  recorder's  courts  of  cities,  the  appeal  is 
to  tlie  general  term  of  the  supreme  court.-  From  tlie  deci- 
sions of  the  special  term  of  tiie  court  of  common  pleas,  or 
the  superior  court  of  the  city  of  New  York,  or  from  the 
special  term  of  the  superior  court  of  the  city  of  Buffalo,  or 
from  the  special  term  of  the  supreme  court,  the  appeal 
is  to  the  general  term  of  the  respective  courts  in  which  the 
judgment  was  entered.^  From  decisions  of  the  court  at 
general  term,  an  appeal  is  taken  to  the  court  of  ap[)eals.' 
The  practice  upon  appeal  to  the  court  of  appeals,  is  sub- 
stantially the  same  as  on  appeals  from  judgments  in  civil 
actions,  and  the  costs  upon  appeal  are  the  same  also. 


CHAPTER  XVII. 

OP  THE  FORECLOSURE  OF  MORTGAGES 

In  this  state  there  are  two  modes  by  which  the  equity 
of  redemption  of  the  mortgagor  of  real  proi)erty  mny  bo 
foreclosed:  one  by  advertisement  under  the  statute,  the 
other  by  an  action  in  court.  The  proceeding  by  advertise- 
ment is  not  a  remedy  in  a  court  of  justice,  but  is  a 
proceeding  against  the  property  to  foreclose  a  lieu  thereon. 
The  proceeding  is  strictly  a  statutory  one,  and  the  direc- 
tions of  the  statute  must  be  accurately  followed  in  every 
particular,  or  the  proceedings  will  be  irregular  and  void.* 


»2R.  S.,  543,  §21.  ^  Code,  §11. 

'  Code,  §S  344  to  347.  '  See  9  Barb.,  273  ;  13  Id.,  137 ;  20  Id., 

'Code,  §348;  L.  1854,  594;  1  L.     18. 
1857,  753;  L.  1854,  228,  §  2G. 


OP  THE  FORECLOSURE  OF  MORTGAGES.  259 


Foreclosure  and  sale  hy  advertisement. 

The  provision  of  the  statute  is,  that  every  mortgage  of 
real  estate  executed  by  any  person  over  twenty-one  years 
of  age,  containing  therein  a  power  to  the  mortgagee,  or 
any  other  person,  to  sell  tlie  mortgaged  premises,  upon 
default  being  made  in  any  condition  of  such  mortgage, 
may  be  foreclosed  by  advertisement,  in  the  cases  and  in 
the  manner  therein  specitied.^ 

This  proceeding  is  ui)on  the  hypothesis  that  the  autho- 
rity to  sell  the  land,  and  the  exercise  of  it,  is  a  matter  of 
private  contract  between  tlie  parties,  and  not  of  jurisdic- 
tion." Therefore,  the  conditions  under  which  that  autho- 
rity may  be  exercised  should  be  clearly  stated  in  the 
mortgage,  and  the  exact  rights  of  the  parties  thereto 
fixed,  without  the  necessity  of  a  previous  litigation. 
Therefore,  a  mortgage  given  to  secnre  unliquidated  dama- 
ges, though  it  contain  a  power  of  sale,  cannot  be  foreclosed 
under  the  statute.-'  Where  the  exact  amount  belonging 
to  the  mortgagee,  in  case  of  defaidt  is  specitied,  as  where 
the  damages  to  be  secured  against,  though  in  their  nature 
uncertain,  are  liquidated  in  the  mortgage,  it  may  be  fore- 
closed under  the  statute.  Thus,  where  the  mongage  is 
conditioned  for  the  delivery  of  specific  articles,  and  the 
mortgagee  is  authorized,  on  default,  to  sell  the  mortgaged 
premises  at  i)ublic  auction,  and  to  retain  from  the  pro- 
ceeds thereof  a  sum  specitied  in  the  mortgage,  the  court 
held  that  it  was  equivalent  to  a  mortgage  executed  to 
secure  the  paynjent  of  money.* 

Who  may  execute  siich  mortgage^  &c. 

This  statute,  as  enacted,  took  effect  in  1830,  and  its  pro- 
vision is,  "  that  every  mortgage  of  real  estate,  lieretoforo 
executed  by  any  person  being  at  the  time  more  than 
twenty-live  years  of  age,  or  hereafter  executed  by  any 
person  over  the  age  of  twenty-one  years,  containing  tho 
power,  &c.,  might  be  foreclosed  by  advertisement,  «S:c."* 
A  mortgage  with  i)ower  of  sale,  &c.,  executed  prior  to  the 


»  2  R.  S.,  545,  §  I ;  2  N.  Y.  S.  at  L ,     =3  Bnrb..  Ch.  R..  CID. 

5GI.  ■*  7  Wend.,  458. 

»  7  JoliMS.  Ch.  K.,  45.  '  2  11.  S.,  545,  §  1. 


2G0  ADMINISTRATION  OF  CIVIL  JUSTICE. 

passage  of  the  Eevised  Statutes,  by  a  person  under  twenty- 
five  years  of  age,  was  void.' 

A  power  of  attorney  to  execute  a  mortgage,  authorizes 
the  attorney  to  insert  in  the  mortgage  a  power  of  sale  on 
default  of  payment;  for  the  power  to  sell  applies  solely 
to  the  remedy,  and  impairs  no  right  of  the  mortgagor.*  A 
married  woman  may  likewise  confer  on  the  mortgagee, 
and  his  heirs  and  executors,  a  power  to  sell  in  default  of 
payment;  and  a  sale  under  such  power,  pursuant  to  the 
statute,  is  a  complete  bar  to  the  equity  of  redemption.^ 

The  power  of  sale  given  in  such  mortgage,  i)asses  by 
assignment  of  the  legal  interest  of  the  mortgage,  unless 
there  are  words  of  restriction  ;  and  the  assignee  may  fore- 
close the  mortgage  under  the  statute.^ 

Who  may  foreclose. 

The  foreclosure  should  be  had  in  the  name  of  the  party 
in  interest,  as  the  mortgagee ;  or,  if  assigned,  in  the  name 
of  the  assignee  or  assignees ;  and,  in  case  of  decease,  in 
the  name  of  their  legal  re[)resentatives.*  The  rule  is,  that 
the  parties  in  interest  should  join  in  the  notice  of  sale ;  if 
part  only  of  the  bond  and  mortgage  is  assigned,  then  the 
assignee  should  join  with  the  mortgagee.  But  a  person, 
to  whom  a  part  of  the  mortgaged  premises  had  been  con- 
veyed, without  any  interest  in  the  debt  secured  by  such 
mortgage,  is  not  to  be  joined  in  such  notice  with  the  mort- 
gagee.^ The  power  of  sale  passes  b}'^  an  assignment  of 
the  legal  interest  of  the  mortgage,  unless  there  are  words 
of  restriction.'^ 

Requisites  to  foreclosure. 
To  entitle  a  party  to  give  notice  according  to  the  statute 
and  to  make  the  foreclosure  therein  specified,  there  must 
1,  be  some  default  in  a  condition  of  such  mortgage,  by 
which  the  power  to  sell  becomes  operative.*  It  has  already 
been  observed  that  the  conditions  under  which  the  power 
to  sell  becomes  operative,  must  be  clearly  stated  in  the 
mortgage,  or  it  cannot  be  foreclosed  under  the  statute; 
because  it  could  not  be  determined  without  litigation, 


•  5  Johns.  Cli.,  R.,  35  (41).  *  2  Cow.,  195  (231),  &c. 

*3ld.,  129;  7  Id.,  45.  M  Paige,  48. 

»  1  Paipe,  48.  •  2  R.  S.,  545,  §  2,  sub.  1. 

*2  R.   S.,  54C,§4,  sub.  1;    13  Barb., 
137. 


OF  THE  FORECLOSURE  OF  MORTGAGES.  261 

whether  the  power  to  sell  had  become  operative.^  2.  That 
no  suit  or  proceeding  had  been  instituted  at  law  to  recover 
the  debt,  then  remaining  secured  by  such  mortgage,  or 
any  part  thereof;  or,  if  any  such  suit  or  proceeding  had 
been  instituted,  that  the  same  had  been  discontinued;  or, 
that  an  execution  upon  the  judgment  rendered  thereon, 
had  been  returned  unsatistied  in  whole  or  in  part ;  and,  3, 
that  such  power  of  sale  had  been  duly  registered,  or  the 
mortgage  containing  the  same,  had  been  duly  recorded.* 
It  has  been  held,  that,  as  between  the  mortgagor  and  tho 
party  seeking  to  foreclose,  the  recording  of  the  power  or 
the  mortgage  is  not  essential  to  the  validity  of  the  pro- 
ceedings to  foreclose.  That  the  recording  was  designed 
merely  for  the  protection  of  purchasers.^  But  a  prudent 
party  would  not  omit  to  attend  to  the  recording  of  the 
power  and  mortgage. 

Tlie  nature  of  the,  equity  of  redemption  sought  to  he  foreclosed. 

The  equity  of  redemption  in  mortgaged  premises  beforo 
entry  or  foreclosure,  is  equivalent  to  the  estate  in  fee, 
descendable  by  inheritance,  devisable  by  will,  and  aliena- 
ble by  deed.  As  such,  the  widow  is  entitled  to  be  endowed 
therein,  as  well  when  the  mortgage  was  made  before  mar- 
riage as  when  it  was  executed  by  the  husband  and  wife  during 
coverture.*  All  persons  acquiring  this  equity  of  redemp- 
tion, either  by  descent  or  purchase,  prior  to  the  foreclosure 
thereof,  are  entitled  to  redeem  the  land  by  paying  the  mort- 
gage ;  and  it  is  unquestionably  the  design  of  the  statute 
that  they  should  be  notified  of  any  intended  foreclosure 
of  such  equity,  that  they  may  have  an  opportunity  of 
exercising  such  right,  and,  if  not  legally  notified,  the  fore- 
closure, as  to  them,  will  be  void.  The  statute  has,  there- 
fore, carefully  pointed  out  the  manner  in  which  such  notice 
shall  be  given. 

Notice  of  foreclosure. 

The  first  step  to  be  taken  in  the  exercise  of  the  power 
of  foreclosure  and  sale,  is  to  give  the  requisite  notice  that 
such  mortgage  will  be  foreclosed  by  the  sale  of  the  mort- 
gaged premises.  This  is  required  by  statute  to  be  done  in 
the  following  manner :    1.    By  publishing  the  same  for 


»  3  Barb.  Ch.  R.,  619.  '2  Cow.,  195;  4  Id.,  2GC. 

»  2  R.  S.,  545,  §  2,  sub.  2,  3.  *  8  Barb.,  G18. 


2C2  ADMINISTRATION   OF   CIVIL  JUSTICE. 

twelve  weeks  successively,  at  least  once  in  each  week,  in 
a  newspaper  printed  in  the  connty  where  the  premises 
intended  to  be  sold  shall  be  sitnated,  or  if  such  premises  be 
situated  in  two  or  more  counties,  in  a  newspaper  printed 
in  either  of  them  ;'  2.  By  affixing  a  copy  of  such  notice, 
at  least  twelve  weeks  prior  to  the  time  therein  specified 
for  tbe  sale,  on  the  outward  door  of  the  building;  where 
the  county  courts  are  directed  to  be  held,  in  the  county 
where  the  premises  are  situated,  or  if  there  be  two  or  more 
such  buildings,  then  on  the  outward  door  of  that  which 
shall  be  nearest  to  the  premises  ;  and  by  delivering  a  copy 
of  such  notice,  at  least  twelve  weeks  prior  to  the  time 
therein  specitied  for  the  sale,  to  the  clerk  of  the  county  in 
which  the  mortgaged  premises  are  situated,  who  shall 
immediately  affix  the  same  in  a  book  prepared  and  kept  by 
him  for  that  purpose,  and  who  shall  enter  in  said  book,  at  the 
bottom  of  such  notics,  the  time  of  receiving  and  affixing 
the  same,  duly  subscribed  by  said  clerk,  and  shall  index 
such  notice  to  the  name  of  the  mortgagor;'  3.  By  serving 
a  copy  of  such  notice,  at  least  fourteen  days  prior  to  the 
time  therein  specified  for  the  sale,  upon  the  mortgagor  or 
his  parsonal  representatives,  and  upon  the  subsequent 
grantees  and  mortgagees  of  the  premises,  whose  convey- 
ance and  mortgage  shall  be  upon  record  at  the  time  of  the 
first  publication  of  the  notice,  and  upon  all  persons  having 
a  lien  by  or  under  a  judgment  or  decree  upon  the  mort- 
gaged premises,  subsequent  to  said  mortgage,  pers(mally, 
or  by  leaving  the  same  at  their  dwelling  house,  in  charge 
of  some  person  of  suitable  age  ;  or  by  serving  a  co[)y  of 
such  notice  ui)on  said  jjersons,  at  least  twenty-eight  days 
prior  to  the  time  therein  specitied  for  the  sale,  by  deposit- 
ing the  same  in  the  post-otfice,  properly  folded  and  directed 
to  the  said  i)ersons,  at  their  respective  places  of  residence.' 
Every  such  notice  must  specify :  1.  The  names  of  the 
mortgagor  and  of  the  mortgagee,  and  the  assignee  of 
the  mortgage,  if  any ;  2.  The  date  of  the  mortgage  and 
where  recorded,  or  where  the  power  of  sale  is  registered  ; 
3.  The  amount  claimed  to  be  due  thereon,  at  the  time  of 
the  first  publication  of  such  notice  ;  4.  A  descri[)tioQ 
of  the  mortgaged  premises,  conforming  substantially  with 

'  2  R.  S.,  545,  §  3,  sub.  1 ;   N.  Y.  S.  at    ^2  R.  S..  546.  §  3,  subs.  2,  X  asamend- 
L,  565.  c(l,  Lawsl842,  ch.  277;  Laws  1844, 

'  2  R  S.,  545,  §  3,  asamonded  by  Laws  cli.  346. 

1 842,  p.  364,  §  5,  aad  by  Law's  1857, 
vol.  1,  p.  667. 


OF  THE  FORECLOSURE  OF  MORTGAGES.  263 

that  contained  in  the  mortgage  ;'  and  it  shonld  contain  tho 
time  .and  place  when  and  where  the  sale  will  be  had.  Tho 
place  shonld  be  definitely  stated  therein,  and  if  no  place  be 
designated,  the  proceedings  will  be  irregular;^  or  if  tbo 
designation  be  such  as  to  leave  the  place  of  sale  uncertain, 
it  will  be  too  indefinite.^ 

An  omission  to  comply  with  any  of  these  essential 
requisites,  either  in  the  notice  to  be  given  or  in  the  man- 
ner of  publishing  the  same,  will  be  fatal  to  the  proceeding. 
Therefore,  great  care  shonld  be  taken  to  see  that  each  and 
every  requisite  of  the  statute  is  fully  complied  with  ;  for 
the  statute  gives  no  effect  to  a  foreclosure  by  advertise- 
ment, unless  conducted  as  prescribed  therein.* 

Under  the  Revised  Statutes,  as  amended,  there  are  four 
necessary  ijrereqnisites,  in  the  publication  and  service  of 
notices,  to  a  valid  sale,  under  a  power  contained  in  a  mort- 
gage :  The  notice  of  sale  must  be  published  for  a  specified 
time,  in  a  specified  newspaper  ;  a  copy  of  such  notice  must 
be  affixed  in  a  specified  i)lace,  at  a  certain  period  before  the 
time  of  sale  ;  a  copy  of  the  same  must  also  be  delivered 
to  the  clerk  of  the  county  in  which  the  mortgaged  premises 
are  situated,  for  a  specified  time  prior  to  the  time  of  sale 
therein  specified  ;  and  a  copy  thereof  must  be  served  npon 
the  mortgagor  or  his  personal  representatives,  &c.,  &c.,  in 
one  of  the  ways  specified  by  statute.^ 

Length  of  notice. 

The  first  publication  of  notice  of  sale  must  be  at  least 
eighty-four  days,  or  twelve  full  weeks  before  the  time  of 
sale ;  and  the  publication  must  be  made  in  every  inter- 
vening week,  or  until  the  expiration  of  the  time  required." 
In  the  computation  of  time  for  this  purpose,  the  first  day 
is  to  be  excluded,  and  the  last  day  is  to  be  included.'^  It 
is  the  better  way  to  give  the  notice  thirteen  insertions  in 
the  newspaper,  so  as  to  be  able  to  exclude  one  of  the  days 
of  publication,"  although  if  the  notice  is  published  full 
twelve  weeks  prior  to  the  time  of  sale,  and  is  inserted  once 


'  2  R.  S.,  546,  55  4.  "16  Barb..  347. 

«  5  Jolins.  Ch.  R.,  35.  ^  7  How.,  372  ;   12  Id.,  493 ;   16  Barb, 

'12  How.,  490.   '  347. 

*  13  Barb.,  137.  •  IG  Barb.,  351;  20  Id..  150;  1  Woud., 

*  11  How.,  191 ;  Law.s  1857,  vol.  1,  p.     90. 

667  ;  2  R.  S.,  545,  §  3,  as  thus 
amended ;  2  N.  Y.  S.  at  L.,  565. 


264  ADMINISTRATION   OF   CIVIL  JUSTICE. 

in  each  week  for  twelve  successive  weeks,  the  requirements 
of  the  statute,  in  that  respect,  are  complied  with. 

The  notice  must  likewise  be  affixed  on  the  outward  door 
of  the  building  where  the  county  courts  are  directed  to  be 
held,  for  the  same  period  of  time,  that  is,  twelve  full  weeks 
prior  to  the  time  therein  specified  for  the  sale ;  but  it  is 
not  necessary  that  the  party  afhxing  it  there  shall  be  able 
to  swear  that  it  has  continued  to  be  thus  alfixed ;  indeed, 
it  is  not  necessary  that  he  shall  have  seen  it  there  after 
the  time  he  tirst  atiixed  it  to  the  door.^ 

It  must  also  be  made  to  appear  that  such  notice  of  sale 
has  also  been  athxed  to  the  book  prepared  and  kept  by  the 
clerk  for  that  purpose,  for  the  full  period  of  twelve  weeks 
prior  to  the  time  specified  for  the  sale.  Proof  of  mere 
delivery  to  the  clerk  for  such  purpose  is  not  sulficient ;  and 
where  the  premises  to  be  sold  are  situated  in  more  than  one 
county,  notices  should  be  affixed  as  above  in  each  county. 

Notice  must  also  be  served  upon  the  mortgagor  or  his 
personal  representatives,  or  others,  as  the  case  may  re- 
quire,^ fourteen  days  prior  to  the  time  therein  specified 
for  the  sale,  if  it  is  served  upon  him  personally,  or  by 
leaving  the  same  at  their  dwelling  house,  in  charge  of 
some  person  of  suitable  age;  or,  at  least,  tiventij-eight  days 
prior  to  such  specified  time  of  sale,  if  it  is  served  by  depo- 
siting the  notice,  properly  folded  and  directed,  in  the  post 
office.^  In  the  latter  case  the  notice  must  be  directed  to 
the  persons  to  be  served  therewith  at  their  respective 
places  of  residence.^  It  will  thus  be  seen  that  there  are 
three  ways  in  which  the  party  may  serve  notice  upon  the 
party  entitled  to  such  notice.*  If  served  by  mail,  it  may 
be  deposited  in  any  oflice  in  the  state  f  but  in  all  cases 
the  postage  should  be  prepaid,  where  that  is  necessary  to 
entitle  the  paper  to  be  forwarded  ;  and  the  twenty-eight 
days  are  to  be  counted  from  the  time  of  the  deposit  of 
the  letter  in  the  post  ofiice,  independent  of  the  date  of  the 
postmark.^ 

Where  to  be  published. 

The  notice  must  be  published  in  some  newspaper  in  the 
county  where  the  premises  are  situated,  provided  a  news- 
paper be  published  therein  f  and  if  no  newspaper  be  pub- 

'  7  Cow.,  13;  12  How.,  490.         »  16  Barb.,  349. 

*  See  ante.  »  12  How.,  490. 

'  2  R.  S.,  546 ;  L.  1844,  529.  '  2  R.  S.,  543,  8  3,  sub.  1. 

*  11  N.  Y.,  196.  ^ 


OF  THE  FOEECLOSUKB  OF  MOETGAGES.  265 

lisbed  in  such  county,  then  it  may  be  published  in  a 
newspaper  of  an  adjoining  county ;'  and  if  the  premises 
are  situated  in  two  or  more  counties,  it  may  be  published 
in  a  newspaper  printed  in  either  county.*  And  where  all 
the  printers  and  proprietors  of  the  newspapers  in  the 
county  where  the  mortgaged  premises  is  situated  refuse  to 
publish  the  notice  of  sale  for  the  ijrice  allowed  by  law,  the 
mortgagee  may  publish  the  notice  in  the  state  paper 
instead  of  a  paper  printed  in  such  county.^ 

The  law  will  be  satisfied  by  publishing  such  notice  in 
any  newspaper  published  in  the  proper  county,  and  the 
question  as  to  the  general  or  comparative  circulation  of 
such  paper  will  not  be  examined.'' 

Where  notice  of  any  such  sale  has  been  published  in 
the  state  paper  for  the  reasons  above  stated,  a  copy  of 
such  notice  must  be  served,  at  least  six  weeks  before  the 
time  of  such  sale,  on  the  person  in  possession  of  the 
mortgaged  premises,  in  all  cases  where  the  premises  are 
occupied  ;  and  where  such  premises  are  not  occupied,  and 
the  mortgagor,  his  heirs  or  personal  representatives,  shall 
reside  in  the  county  where  such  premises  lie,  then  upon 
such  mortgagor,  his  heirs,  &c.,  as  the  case  may  be.^ 

Upon  whom  notice  must  be  served. 

The  statute  directs  that  the  notice  shall  be  served  upon  the 
mortgagor  or  his  personal  representatives,  and  upon  subse- 
quent grantees  and  mortgagees  of  the  premises  whose  con- 
veyance and  mortgage  shall  be  upon  record  at  the  time  of 
the  first  publication  of  the  notice,  and  upon  all  persons 
having  a  lien  by  or  under  a  judgment  or  decree  upon  the 
mortgaged  premises,  subsequent  to  said  mortgage.^ 

It  is  not  declared  in  the  statute  that  notice  shall  be 
served  ujjon  the  heirs  of  the  mortgagor,  in  case  of  his 
death,'^  but  a  sale  of  the  premises,  conducted  as  prescribed 
by  statute,  is  declared  to  be  a  bar  of  all  claim  or  equity  of 
redemption  of  the  mortgagor,  his  heirs  and  representatives, 
and  of  all  persons  claiming  under  him  or  them,  by  virtue 
of  any  title  subsequent  to  such  mortgage ;  and  also,  of 
any  person  having  a  lien,  by  any  judgment  or  decree, 
upon  the  land  or  any  part  thereof  contained  in  such  mort- 

>  2  R.  S.,  552,  §  10.  *  2  R  S.,  C49,  §  50. 

»  2  R.  S.,  543,  §  3,  sub.  1.  *  Idem,  545,  §  3,  sub.  3. 

»  2  R.  S.,  648,  §  46.  '  Seo  11  Barb.,  191. 
♦  12  How.,  444;   11  PaigR,  624. 

n.— 34 


266  ADMINISTEATION   OF   CIVIL  JUSTICE. 

gai^e.  subsequent  to  the  same ;  and  of  every  person  having 
any  lien  or  claim  by  or  under  such  subsequent  judgment 
or  decree,  icho  shall  have  been  served  ivith  notice  of  said  sale^ 
as  required  hj  laiv} 

"  Aside  from  the  statute,  service  upon  the  heir  would 
seem  to  be  necessary,  even  more  so  than  upon  the  personal 
representati ve.  The  personal  representatives  are  interested 
to  prevent  a  deficiency  on  the  sale  for  which  the  estate 
might  be  liable.  They  are  interested  in  the  equity  of 
redemption  Avhere  the  mortgaged  premises  consists  of  a 
term  for  years,  and  also  where  there  is  a  probability  of  the 
personal  estate  of  the  mortgagor  being  insufficient  to  pay 
his  debts.  Those  are  the  only  cases  in  which  the  personal 
representatives  are  interested.  And  because  they  are  thus 
interested,  to  require  service  of  notice  upon  them  for  the 
heirs,  would  aftbrd  no  safety  or  possible  advantage  to 
the  latter,  for  the  reason  that  it  would  be  only  when  there 
was  a  probability  of  the  mortgaged  premises  proving  worth- 
less, or  of  no  value  to  the  heirs,  that  the  personal  repre- 
sentatives would  have  any  interest  whatever  in  the  sale. 
The  interest  of  the  heir,  however,  is  diftereut.  The  title 
to  the  premises,  except  when  it  consists  of  a  term  of  years, 
vests  in  them,  with  all  the  rights  and  incidents  of  absolute 
ownership.  The  title  vests,  too,  charged  with  the  payment 
of  the  very  mortgage  which  is  being  foreclosed,  and  which 
the  heirs  must  pay  out  of  their  own  property,  without 
resorting  to  the  estate  of  the  mortgagor."^  "  In  suits  in 
equity  for  the  foreclosure  of  mortgages,  the  heirs  are 
indispensable  parties  -^  and,  as  a  foreclosure  under  the 
statute,  is  equivalent  to  a  foreclosure  and  sale  under  a 
decree  of  a  court  of  equity,  so  far  as  to  be  an  entire  bar  to 
the  rights  of  the  heirs  in  the  equity  of  redemption,  there 
can  be  no  substantial  reason  why  the  notice  should  be 
served  upon  them  in  the  one  case  and  not  in  the  other."* 

When  the  subsequent  mortgagee  has  assigned  his  mort- 
gage, and  the  assignment  is  on  record,  notice  should  be 
served  upon  such  assignee,^  as  well  as  upon  the  mortgagor. 
Notice  must,  in  any  event,  be  served  upon  the  mort- 
gagor, if  he  be  living,  although  he  is  not  the  owner  of  the 
equity  of  redemption  at  the  time  of  the  foreclosure  :^  and 


*  2  R.  S.,  546,  §  8,  as  amended  bylaws  ^  Crarv's  Spe.  Pro.,  CD,  note. 

18i4,  530,  (5  4.  MO  How.,  51. 

*  1  R.  S.,  749,  §  4.  6  20  Barb.,  18. 
»  2  Baib.  Ch.  Pr.,  176  ;  10  Paige,  410. 


OF  THE  FORECLOSURE  OF  MORTGAGES.      267 

an  omission  to  serve  notice  upon  him  would  render  the  sale 
void.^ 

As  before  stated,  a  married  woman  may  confer  on  tbe 
mortgagee,  his  heirs,  &c.,  a  i>ower  to  sell,  in  default  of 
payment,  and  she  may,  therefore,  be  a  mortgagor  upon 
whom  such  notice  must  be  served.^  So,  also,  if  tlie  mort- 
gage is  executed  by  the  husband  and  wife,  slie  is  a 
mortgagor  within  the  meaning  of  the  statute,  and  must 
be  served  with  notice  as  Avell  as  her  husband,^  whetLer  the 
mortgage  be  foreclosed  in  his  lifetime  or  afterwards.' 

It  has  already  been  stated,  that  in  case  notice  of  any 
sale,  by  virtue  of  such  mortgage,  is. published  in  the  state 
paper,  because  of  the  refusal  of  publishers  in  the  proper 
county  to  publish  such  notice  for  the  jjrice  allowed  by  law, 
that  a  copy  of  such, notice  shall  be  served  upon  the  person 
in  possession  of  the  mortgaged  premises,  when  such  i)re- 
mises  are  occupied ;  and  if  not  occupied,  if  the  mortgagor 
or  his  heirs  or  personal  representatives  reside  in  the  county 
where  the  mortgaged  premises  are  situated,  then  iipon  such 
mortgagor,  his  heir  or  jjersonal  representatives.^ 

How  served. 

Notice  must  be  served  upon  the  proper  parties  person- 
ally, or  by  leaving  the  same  at  their  dwelling  house,  in 
charge  of  some  person  of  suitable  age ;  or  by  depositing 
the  same  in  the  post-office,  properly  folded  and  directed  to 
such  parties,  at  their  respective  places  of  residence.^  Since 
the  amendatory  act  of  1844,  the  three  modes  of  giving  notice 
prescribed  by  the  act  as  amended  —  publication,  posting, 
and  personal  service  or  by  mail — must  all  be  taken,  or  the 
foreclosure  will  be  void.*^ 

Where  the  death  of  the  mortgagor  is  proved,  service 
will  be  dispensed  with,  unless  it  be  shoAvn  that  there  are 
personal  representatives.'  That  is,  the  absence  of  service 
will  not,  yer  se,  vitiate  the  proceedings  ;  l)ut  it  may  well 
be  questioned  whether  the  heirs  of  the  mortgagor  not 
served,  would  be  barred  of  their  rights  tliereby." 

When  the  service  is  by  mailing,  the  notice  to  the  mort- 
gagor may  be  deposited  in  any  post-office  in  the  state  f 

Ml   Barb.,    193;    17  Id.,    100;  9  Id.,     'OBarb.,  27S;   11  Id.,  191 :  16  Id.,  9; 

284;   16  Id.,  9.  20  Id.,  18;  9  Abb.,  60,  note. 

»  3  Johns.  Cli.,  129;   7  Id.,  45.  '  20  liarb.,  18. 

'  1 1  Barb..  193  ;   0  Paige,  474.  "  See  ante. 

*  2  R.  S.,  049,  §  50.  "10  Barb.,  347. 

•  Idem,  545,  §  3,  sub.  3. 


268  ADMINISTRATION  OF  CIVIL  JUSTICE. 

and,  as  the  statute  requires  the  notice  to  be  folded  and 
directed,  the  direction,  when  the  envelope  is  unsealed, 
must  be  upon  the  notice  itself;  a  direction  upon  the 
unsealed  envelope  will  not  be  sufficient.* 

Postponement  of  the  sale. 

The  sale  of  the  mortgaged  premises  may  be  postponed 
from  time  to  time,  by  inserting  notice,  as  soon  as  practi- 
cable, in  the  newspaper  in  which  the  original  advertise- 
ment was  published,  and  continuing  it  till  the  time  to 
which  the  sale  is  postponed.^  And  such  publication  is  a 
sufficient  service  of  a  notice  of  i30stponement.'  If  the 
postponement  is  made  at  the  time  and  place  appointed 
for  the  sale,  by  stating  to  those  present  the  time  and  place 
to  which  the  adjournment  is  made,  the  subsequent  notice, 
to  be  inserted  and  continued  in  the  newspaper  until  the 
time  of  sale,  must  conform  to  the  adjournment  as  thus 
announced.*  And  when  the  day  appointed  for  the  sale 
fell  on  Sunday,  it  was  held  to  be  competent  for  the  mort- 
gagee to  postpone  the  sale  to  a  subsequent  day.^  And 
having  publicly  postponed  the  sale  to  a  subsequent  day, 
the  mortgagee  cannot  disregard  such  adjournment  and 
proceed  under  the  original  notice.^ 

The  sale. 

The  sale  must  be  at  public  auction,  in  the  daytime,  in 
the  county  where  the  mortgaged  premises,  or  some  part 
of  them,  are  situated ;  and  if  the  premises  consist  of  dis- 
tinct farms,  tracts  or  lots,  they  must  be  sold  separately ; 
and  no  more  farms,  tracts  or  lots  can  be  sold  than  are 
necessary  to  satisfy  the  amount  due  on  such  mortgage,  at 
the  time  of  the  first  publication  of  notice  of  sale,  with 
interest,  and  the  costs  and  expenses  allowed  by  law  J  The 
sale  should  take  place  at  the  time  and  place  stated  in  the 
notice  of  sale,  unless  there  has  been  a  legal  postponement; 
and  where  there  has  been  a  public  postponement,  the 
mortgagee  cannot  disregard  it  and  sell  under  the  original 
notice,  and,  if  he  do  so,  the  sale  will  be  irregular.^ 

When  the  day  first  appointed  in  the  notice  for  sale  hap- 


»  9  Abb.,  66,  note.  s  7  How.,  372 ;  see  12  "Wend.,  57. 

'  2  R.  S.,  546.  §  5 ;  7  Johns.,  217.  «  7  Johns..  219;  4  Denio,  107. 

7  How.,  372.  ■'2  R.  S.,  546,  §  6. 

4  Demo,  104.  «  7  Johns.,  219 ;  4  Denio,  104. 


OF  THE  FORECLOSUEE  OF  MORTGAGES.  269 

pens  to  be  Simday,  a  postponement  from  that  day  will  be 
regular  ;^  although  selling  under  a  statute  foreclosure,  not 
being  a  judicial  proceeding,  it  will  be  legal  if  the  sale 
take  place  on  Sunday.^ 

The  statute  providing  that  if  the  premises  consist  of 
distinct  farms,  tracts  or  lots,  they  shall  be  sold  separately, 
does  not  apply  in  cases  where,  at  the  time  of  giving  the 
mortgage,  they  constituted  but  one  farm,  tract,  &c.,  but, 
subsequent  to  the  mortgage,  were  subdivided  by  the  mort- 
gagor for  the  more  convenient  occupation  or  sale.  In 
such  case,  equity  alone  can  protect  the  rights  of  the  sub- 
sequent purchasers  of  separate  iDarcels,  if  they  have  any.' 

If  rights  have  been  acquired  subsequent  to  the  mort- 
gage, by  individuals  who  have  become  purchasers  of 
portions  of  the  mortgaged  premises,  thus  subsequently 
divided  by  the  mortgagor  into  separate  and  distinct  par- 
cels, and  if  the  rights  of  both  the  mortgagee  and  such 
subsequent  purchasers  or  grantees  can  be  protected,  there 
can  be  no  doubt  that  equity  might  interfere,  and  compel 
that  portion  owned  by  the  mortgagee  to  be  first  sold  for 
the  satisfaction  of  such  mortgage;  and,  if  it  became  neces- 
sary to  sell  any  portions  of  the  remainder,  to  order  their 
separate  sale,  in  the  inverse  order  of  their  alienation.  But 
without  such  an  order  on  the  part  of  the  court,  the  mort- 
gagee would  not  be  bound  to  sell  in  sej^arate  parcels. 

In  cases  where  the  premises  do  not  consist  of  distinct 
farms,  tracts  or  lots,  the  whole  may  be  sold  together;  and 
the  mortgagee  may  apply  the  avails  to  the  satisfaction  of 
his  mortgage,  whether  the  same  be  then  due,  or  thereafter 
to  become  due.'' 

AVhere,  on  foreclosure  by  advertisement  of  a  mortgage 
payable  by  installments,  the  mortgagee  sells  only  for  the 
amount  due,  subject  to  the  residue  of  the  mortgaged  debt, 
instead  of  selling  for  the  whole  debt,  the  land  becomes 
the  primary  fund  for  the  payment  of  such  residue,  and  the 
mortgagor  is  entitled  to  any  surplus  proceeds  of  the  sale.^ 
If,  on  such  sale,  the  mortgagee  becomes  the  purchaser, 
the  whole  mortgage  debt  will  be  extinguished ;  but  if  a 
third  person  becomes  the  purchaser,  and  the  mortgagor 
is  compelled  to  pay  the  residue  of  the  mortgage,  he  is 


>  7  IIow.,  372.  *  7  Paige.  211  :  16  Barb.,  .350;  Crary'a 

»  12  Wond.,  57.  Spe.  Pro.,  71. 

»  8  Barb.,  9.  »  1  Paige,  248  ;  2  Johns.  Ch.,  125. 


270 


ADMINISTRATION   OF   CIVIL  JUSTICE. 


entitled  to  an  assignment  of  the  mortgage,  that  be  may 
reimburse  liiinself  ifrora  the  land.^ 

AUbougb  the  authority  to  sell,  and  the  exercise  of  it,  is 
a  matter  of  i)rivate  contract  between  the  parties,  and  not 
one  of  jurisdiction,  yet  the  sale  must  be  made  at  public 
auction,  after  and  in  pursuance  of  the  notice  prescribed  by 
tlie  statute,  to  bar  the  right  of  redemption,  although  the 
mortgage,  b^'  its  expressed  terms,  authorizes  the  mort- 
gagee, on  default,  &c.,  to  sell  the  premises  at  private  sale 
to  satisfy  the  debt.^  This  is  nnder  that  rule  of  equity, 
that  a  court  of  equity  will  not  ijermit  a  creditor,  by 
mortgage,  to  obtain  a  collateral  or  additional  advantage 
through  tlie  necessities  of  the  debtor,  be3ond  the  payment 
of  principal,  interest  and  costs;  and  that  equity  will  let  a 
man  loose  from  his  agreement,  and  even  against  his 
agreement  admit  him  to  redeem  his  mortgage.^  And  in 
pursuance  of  this  princi[)le,  the  statute,  admitting  the 
^•alidity  of  the  power  of  sale,  has  attempted  to  regulate 
the  manner  of  its  exercise,  for  the  protection  of  the  rights 
of  the  mortgagor,  and  others  deriving  their  rights  through 
Iiim.  The  principle  is,  if  no  notice  is  given  to  the  owner 
of  the  equity  of  redempticm  on  a  foreclosure  of  a  mort- 
gage by  advertisement,  the  sale  is  void  as  to  him.'' 

The  statute  provides  that  the  mortgagee,  his  assigns, 
and  his  and  their  legal  representatives,  may  fairly  and  in 
good  faith  purchase  the  premises  so  advertised,  or  any  part 
thereof,  at  such  sale.^  When  the  mortgagee  advanced  less 
than  the  face  of  the  mortgage,  when  it  was  given,  and, 
nnder  the  power  of  sale,  has  advertised,  claiming  the  whole 
face  of  the  mortgage  as  due,  he  may  be  restrained  from 
Celling,  by  the  grantee  of  the  mortgagor,  until  proceedings 
can  be  had  to  ascertain  the  amount  actually  due." 

The  payment  of  a  mortgage  extinguishes  the  ])ower  to 
sell  contained  in  it.  By  payment,  the  whole  moitgage  is 
extinct,  and  it  ceases  to  operate  either  at  law  or  in  equity, 
and  the  whole  title  reinvests  in  the  mortgagor.''  There- 
fore, if  a  statute  foreclosure  afterwards  takes  i)lace,  for  the 
benetit  of  an  assignee  of  the  mortgage,  and  the  property 
is  bid  in  by  him  at  the  sale,  he  "acquires  no  title.     The 


7  Piu^'e,  248 ;  2  Johns.  Ch.,  125.  »  2  R.  S.,   546,  8  7;    2  N.  Y.  S.  at  L., 

M:!N.  Y.,  200.  5GG. 

'  Idem.,  per  Gardxeu.  Ch.  J.,  209.  "  Clark.  ;-!Gl. 

*  17  B;irb.,  100;  see  20  Wend.,  2G0;  0     '5  Hili,  272,  perCowEN'.  J. ;   18  Johns., 

J^^'l^-.  278.  1^  12;  21  Wend.,  483. 


OP  THE  FORECLOSURE  OP  MORTGAGES.  271 

purchaser  is  not  within  the  statute,  for  he  has  no  power 
to  sell,  and  is  not  a  purchaser  in  good  faith,^ 

Surjjlus  money  arishuj  from  the  sale. 

If  there  is  any  surplus  money,  after  satisfying  the  claim 
of  the  mortgagee,  and  paying  him  his  costs  and  expenses 
allowed  by  hiAV,  it  belongs  to  the  mortgagor  or  to  his 
legal  representatives,  unless  subsequent  incumbrancers, 
by  mortgage  or  otherwise,  have  a  claim  ;  in  which  case, 
the  mortgagee  should  retain  the  surplus,  in  trust  for  (ho 
proper  parties,  until  their  rights  can  be  ascertained  and 
adjusted." 

The  mortgagee  owning  another  mortgage,  which  is 
sul)se(pient  to  the  one  foreclosed,  or  having  a  judgment 
against  the  mortgagor,  may  retain  the  surplus,  and  a!)i)ly 
it  to  the  payment  of  such  other  mortgage  or  judgment  y 
or,  if  the  mortgage  is  payable  by  installments,  and  all  aro 
not  due,  he  may  apply  such  surplus  toward  Xha  payment 
of  such  as  are  thereafter  to  become  due/  It  is  otherwise, 
however,  when  the  premises  are  sold  subject  to  such  install- 
ments to  become  due.  In  that  case,  the  suri)lus  belongs 
to  the  mortgagor,  and  the  land  sold  becomes  the  ])rinjai'y 
fund  for  the  i)ayment  of  future  installments,*  an<l  if  the 
mortgagee  bid  in  the  premises,  the  entire  mortgage  becomes 
extinguished.* 

The  effect  of  sale. 

The  statute  provides  that  every  sale,  pursuant  to  a  ])ower 
as  aforesaid,  and  conducted  according  to  its  provisions, 
made  to  a  purchaser  in  good  faith,  sliail  be  equivalent  to 
a  foreclosure  and  sale  under  the  decree  of  a  court  of  equity, 
so  far  only  as  to  be  an  entire  bar  of  all  claim  or  e<piity  of 
redemption  of  the  mortgagor,  his  heirs  and  representatives, 
and  of  all  persons  claiming  un<lei'  him  or  them,  by  virtue 
of  any  title  subsequent  to  such  mortgage,  and  also,  of  any 
person  having  a  lieu  by  any  judgment  or  decree  upon  the 
land  or  any  part  thereof  contained  in  such  mortgage,  sub- 
sequent to  the  same,  and  of  every  person  having  ajiy  lien 
or  claim  by  or  under  any  such  judgment  or  decree,  who 


>  5  Hill,  272.  '  11  Barb.,  549;  Vi  AYeud.,  488. 

"  See  7  Pui''e,  1G8,  250;  11  Id.,  G24.         "  1  Paijro,  248. 


272  ADMINISTRATION  OP  CIVIL  JUSTICE. 

ftball  have  been  served  with  notice  of  said  sale  as  required 
by  law.' 

It  is  the  policy  of  the  statute  to  make  these  foreclosures 
and  sales  under  a  power,  when  free  from  fraud  and  gross 
irregularity,  final  and  conclusive.^  But,  as  the  proceeding 
is  carried  forward  without  the  attendant  supervision  of  a 
judicial  tribunal,  under  the  particular  directions  of  the 
statute,  all  the  provisions  of  the  statute  must  be  complied 
with,  to  render  the  foreclosure  valid.  Any  omission  to  serve 
the  notice  of  sale  upon  the  parties  entitled  to  such  notice, 
will  render  the  sale  irregular  as  to  them,  and,  as  to  certain 
parties,  irregular  as  to  all.^ 

The  effect  of  a  statute  foreclosure  is  to  transfer  to  the 
purchaser  the  rights  of  the  mortgagee,  so  far  as  he  has 
any,  in  the  mortgaged  premises,  as  a  security  for  his  debt, 
and  so  much  of  the  equity  of  redemption  as  was  not  bound 
by  the  lien  of  a  junior  mortgage  or  judgment.*  And, 
further,  a  bona  fide  purchaser  at  such  sale  is  not  to  be 
defeated  or  prejudiced  by  the  fact  that  the  mortgage  was 
given  for  a  usurious  debt.*  But  the  foreclosure  of  a  mort- 
gage by  virtue  of  a  power  of  sale,  under  the  statute,  is  a 
conclusive  bar  only  in  favor  of  a  bona  fide  purchaser, 
without  notice ;  while  the  mortgagee,  if  he  is  party  to  a 
usurious  contract,  is  in  no  better  situation  as  purchaser 
than  if  no  foreclosure  had  taken  place.®  And  where  the 
mortgage  is  usurious,  and  the  mortgagee  forecloses  by 
sale  under  the  statute,  the  purchaser,  if  he  has  actual 
notice  of  the  usury,  or  if  he  is  the  personal  representative 
of  the  mortgagee,  cannot  claim  to  be  a  homifixU  purchaser, 
and  acquires  no  title.'  Nor  would  a  sale  by  such  pur- 
chaser to  a  third  party,  for  a  valuable  consideration, 
without  notice  of  the  usury,  convey  a  good  title.' 

In  general,  the  sale  on  a  statute  foreclosure  will  be  void 
as  to  those  parties  in  adverse  interest,  on  whom  no  notice 
of  the  foreclosure  is  served.  Thus,  if  no  notice  is  given  to 
the  owner  of  the  equity  of  redemption,  the  sale  will  be 
void  as  to  him.^  So,  where  no  notice  is  served  on  the 
mortgagor,  even  though  he  has  parted  with  the  equity  of 
redemption,  the  sale  is  void. 


'  2  R.  S.,  546,  §  8  ;  2  N.  Y.  S.  at  L.,  566,  «  4  Paicre,  526. 

as  amended  by  Laws  1844,  ch.  346,  *  10  Johns.,  185. 

Laws  1857,  cli.  H08.  •  u  Johns.,  435. 

1  Johns.  Ch.  R.,  50 ;    2  Cow.,  195;  1  '  10  Barb.,  553. 

Paige,  70;  4  Id.,  531.  '17    Barb.,   100;    20   Wend..    260;    9 
•SBarb.,  284;  Hid.,  191;  17Id.,100.  Barb.,  278. 


OF  THE  FORECLOSmiB  OF  MOKTGAGES.  273 


Affidavit  of  sale. 

Where  any  party  other  than  the  mortgagee  has  become 
the  purchaser,  under  the  sale  of  the  mortgaged  premises 
upon  a  statute  foreclosui-e,  and  has  received  a  conveyance 
from  the  mortgagee,  without  affidavits,  &c.,  the  publica- 
tion of  notices,  and  the  circumstances  of  the  sale,  may  be 
proved  by  common  law  evidence ;  but  if  the  mortgagee 
becomes  the  purchaser,  the  foreclosure  is  not  complete 
without  the  affidavits,  as  they  stand  in  the  place  of  the 
conveyance.^ 

The  provisions  of  the  statute  are,  that  an  affidavit  of 
the  fact  of  any  sale,  pursuant  to  such  notice,^  may  be 
made  by  the  person  who  officiated  as  auctioneer  at  such 
sale,  stating  the  time  and  place  at  which  the  same  took 
place,  the  sum  bid,  and  the  name  of  the  purchaser,  which 
is  to  be  annexed  to  a  iDrinted  copy  of  the  notice  of  sale.^ 
That  an  affidavit  of  the  publication  of  such  notice  of  sale, 
and  of  any  notice  of  postponement,  may  be  made  by  the 
printer  of  the  newspaper  in  which  the  same  was  inserted, 
or  by  his  foreman  or  i)riucipal  clerk  ;*  and  an  affidavit  of 
affixing  a  copy  of  such  notice  on  the  outward  door  of  the 
court  house  may  be  made  by  the  person  who  affixed 
the  same,  or  by  any  other  person  who  saw  such  notice  so 
posted  during  the  time  required ;  and  an  affidavit  of  the 
affixing  a  copy  of  such  notice  in  the  said  books  so  to  be 
provided  and  kept  by  the  clerk  pursuant  to  law,^  may 
be  made  by  the  county  clerk,  or  by  any  other  person  who 
saw  such  notice  so  affixed  during  the  time  required ;  and 
the  affidavit  of  the  serving  a  copy  of  such  notice  on  the 
persons  entitled  to  service  thereof,  may  be  made  by 
the  person  who  served  the  same. 

These  affidavits  may  be  taken  and  certified  by  any  judge 
of  a  court  of  record,  or  any  commissioner  of  deeds,''  or 
before  any  justice  of  the  peace,"  and  may  be  filed  in  the 
office  of  the  clerk  of  the  county  where  such  sale  took 
Ijlace,^  and  must  be  recorded  at  length  by  such  clerk  in  a 
book  kept  for  the  record  of  mortgages ;  and  such  original 


'  Per  Broxson,  J.,  in  Arnot  v.  McClure,  '  See  notice  and  how  served,  ante. 

4  Deriio,  41.  '  2  R.  S.,  546,  §  9. 
*  The  aflidavit  of  the  publisher  of  a  newspaper  is  sufficient.     He  is  the  printer 
within  the  statue;  l(j  Barb.,  347. 

'  L.  1857,  ch.  308,  §  1.  ''  L.  1840,  p.  187. 

''2R.  a,  547,  §11.  '2  R.  S.,  547,  §  11. 

n.— 35 


274  ADMIKISTEATION^  OF   CIVIL  JUSTICE. 

affidavits,  the  record  thereof,  and  certified  copies  of  such 
record,  are  presumptive  evidence  of  the  facts  therein  con- 
tained.* 

When  the  aflQdavits  are  properly  made  and  filed,  they 
become  a  substitute  for  a  deed  ;^  but  until  they  are  made, 
filed  and  recorded,  or  a  deed  given  in  pursuance  of  the 
sale,  no  title  passes  to  the  purchaser.^  Consequently, 
when  they  are  made  subsequent  to  the  commencement  of 
an  action  by  the  purchaser,  &c.,  they  will  not  sustain  the 
proceedings  in  such  action.^ 

The  fourteenth  section  of  the  act,^  which  provides  that 
the  affidavits  of  the  publication,  and  of  affixing  notice  of 
sale,  and  of  the  circumstances  of  such  sale,  shall  be  evi- 
dence of  the  sale,  and  of  the  foreclosure  of  the  equity  of 
redemption,  &c.,  without  any  conveyance  being  executed, 
&c.,  since  the  law  of  1844,^  must  be  read  with  reference  to 
such  amendment,  and  the  affidavits,  in  order  to  operate 
as  a  conveyance,  must  state  the  service  of  notice  as  therein 
required,  which  is,  that,  in  addition  to  the  publishing  and 
posting  of  the  notice  of  sale  for  the  time  therein  i)rescribed, 
a  copy  of  such  notice  shall  be  served,  at  least  fourteen  days 
prior  to  the  time  therein  specified  for  the  sale,  upon  the 
mortgagor,  &C.'' 

An  examination  of  the  statutes  will  show  that  the  right 
of  the  mortgagee  to  acquire  the  title  to  the  mortgaged 
premises  on  the  sale,  is  given,  and  the  manner  in  which 
the  title  is  to  be  transferred  to  him  is  regulated  by  statute. 
The  statute  of  1808  provided  no  substitute  for  a  convey- 
ance, and  contained  no  provision  in  relation  to  it ;  and, 
from  necessity,  it  was  held  that  the  title  passed,  under  the 
statute,  1)1)  the  fact  of  the  sale.  The  provision  of  the  Ee- 
vised  Statutes,"  that  the  affidavits  therein  mentioned,  when 
the  mortgagee  was  the  purchaser,  should  take  the  place 
of  a  conveyance,  supplied  this  defect.  The  effect  of  that 
section,  as  amended  in  1838,  was  to  allow  the  substitution 
of  those  affidavits  for  a  conveyance,  in  all  cases,  so  that  a 
person  becoming  the  purchaser  at  such  sale,  this  statute 
conveyance  became  operative  as  to  him ;  and  he  need  not 


'  2  R.  S.,  54T,  §  12.  5  2  R.  S.,  547,  8  14. 

=■  L.  1838,  ch.  266,  §  8 ;  2  R.  S.,  547,  «  L.  1844,  529,  ch.  246. 

§  14:-  '20  Barb.,  559  (562  and  563), 

'  13  Barb.,  13T;  4  Denio,  41.         "  2  R  S  547  S  14. 
*  20  Barb.,  559;  27  Id.,  503.  ' 


OF  THE  FORECLOSFEE  OF  MOETGAGES.  275 

take  a  conveyance  from  the  mortgagee,  as  was  necessary 
prior  to  the  amendment  of  1838.^ 

In  accordance  with  the  foregoing,  it  is  hekl  that  the 
proper  affidavits  of  the  regularity  of  the  sale  being 
recorded,  they  are  a  sufficient  memorandum  in  writing  to 
take  the  case  out  of  the  statute  of  frauds.^ 

Costs. 

Costs  and  expenses  in  this  proceeding  are,  in  general,  to 
be  collected  out  of  the  mortgaged  premises  when  sold. 
The  rule  is,  that  the  one  who  claims  the  surplus  as  heir- 
at-law  of  the  mortgagor,  and  who  has  been  recognized  as 
a  claimant,  by  being  made  defendant  in  an  action  of  inter- 
pleader to  determine  the  right  to  the  surplus  is,  within  the 
statute,^  a  party  liable  to  pay  the  costs,  and,  as  such,  enti- 
tled to  notice  of  taxation.* 

The  statute  provides  that  the  taxation  of  costs  in  these 
cases  shall  be  as  follows:  For  drawing  and  copies  of 
the  advertisement  of  foreclosure  and  sale,  affidavits  of  the 
publication,  posting  and  serving  the  same,  and  of  the  cir- 
cumstances of  the  sale,  and  the  deed  thereof,  the  same 
allowance  as  made  to  attorneys  in  the  supreme  court  for 
drawing  and  copies  of  pleadings,  and  one  dollar  for  serving- 
each  copy  of  the  notice  of  sale  required  by  law  to  be 
served  f  a  fee,  also,  of  ten  dollars,  for  suijerinteuding 
the  sale  thereof,  and  attending  to  the  execution  of  the 
necessary  papers  f  and  the  exi)enses  of  publishiiig  the  ad- 
vertisement according  to  the  rates  therein  allowed,  for  a 
period  not  exceeding  twenty-four  weeks;  the  exjicuse  of 
posting  such  advertisement  and  inspecting  the  same,  not 
exceeding  one  dollar ;  the  expense  of  recording  the  neces- 
sary affidavits,  and  of  the  proving  or  acknowledging  of 
the  deed,  and  of  its  being  recorded,  and  of  necessary 
postage  and  searches.'  By  the  act  of  1857,"  the  clerk  of 
the  county  is  also  entitled  to  twenty-five  cents  for  affixing 
the  notice  of  sale  to  the  book  kept  in  his  office  for  that 
I)urpose.*  The  printer's  fees,  for  publishing  notice  of  sale 
in  the  newspaper,  are  seventy-five  cents  per  folio  for  the 


'  20  Barb.,  563,  per  Green,  J.  »  2  R.  S.,  653,  §  4,  sub.  1. 

'  4  Cow.,  266 ;  1  Paige,  48.  "  Idem,  sub.  2. 

=  2  R.  S.,  652.  '  Idem,  sub.  3. 

*  6  How.,  263.  "  L.  1857,  cli.  308,  §  1. 


276 


ADMLtflSTKATION  OP  CrVTL  JUSTICE. 


first  insertion,  and  thirty  cents  per  folio  for  each  subse- 
quent insertion.^ 

The  allowance  of  one  dollar  for  serving  each  copy  of 
the  notice  of  sale,  is  in  addition  to  the  charge  of  making 
the  copy.^  The  expense  of  taxation  is  fifty  cents,  which 
are  fees  paid  the  taxing  officer,^  unless  such  ofiQcer  be  a 
judge  of  the  court. 

The  oflQcers  authorized  to  tax  costs  in  these  cases,  are 
justices  of  the  supreme  court,  and  county  judges  of  the 
degree  of  counselor  of  the  supreme  court.* 


CHAPTER  XVIII. 

ADMEASUREMENT   OF  DOWEK  BY  PETITION. 

The  statute  provides  that  any  widow,  who  shall  not 
have  had  her  dower  assigned  to  her  within  forty  days  after 
the  decease  of  her  husband,  may^pply,  by  petition,  to  the 
supreme  court,  or  to  the  county  court  of  the  county  in 
which  the  lands  subject  to  dower  lie,  or  to  the  surrogate 
of  the  same  county,  for  the  admeasurement  of  her  dower, 
specifying  in  her  said  petition  the  lands  to  which  she  claims 
dower.^  In  the  city  of  New  York,  she  may  also  apply  to 
the  court  of  common  pleas  of  that  city,  when  the  lands  are 
situated  therein ;  and  in  the  city  of  Buffalo,  she  may  also 
apply  to  the  superior  court  of  the  city  of  Buffalo,  when  the 
lands  are  situated  within  that  city. 

A  copy  of  the  petition,  with  notice  of  the  time  and  place 
where  it  will  be  presented,  must  be  served,  at  least  twenty 
days  previous  to  its  presentation,  upon  the  heirs  of  her 
husband ;  or,  if  they  are  not  the  owners  of  the  lands  sub- 
ject to  dower,  then  upon  the  owners  of  such  lands  claiming 
a  freehold  estate  therein ;  or  their  guardians,  when  such 
hehs  or  owners  are  minors.^    A  tenant  for  years  is  not 


'  2  R.  S.,  648,  §  45;  Laws  1859,  ch.  252.  *  2  R.  S.,  488,  §  1 ;  Laws  1847,  328,  § 
"  6  How.,  493.  29  ;    Laws  1854,  464,  §  6 ;    Code, 

'  2  R.  S.,  631,  §  19.  §  30,  sub.  5. 

*  3  How.,  32.  0  2  R.  S.,  488,  §  2, 


ADMEASUKEMENT  OF  DOWEB  BY  PETITION.         277 

entitled  to  the  service  of  such  notice.  If  snch  tenants  are 
incommoded  by  the  admeasurement,  they  must  seek  their 
remedy  against  their  landlords.^ 

Such  notice  may  be  served  personally  on  any  party  of 
full  age,  or  npon  the  guardians  of  minors,  or  by  leaving 
the  same  with  any  person  of  proper  age,  at  the  last  resi- 
dence of  such  party  or  guardian,  in  case  of  his  temporary 
absence  ;  and  where  such  heir  or  owner  is  a  resident  out 
of  the  state,  the  service  of  such  notice  may  be  upon  the 
tenant  in  actual  occupation  of  the  lands,  or,  if  there  is 
no  tenant,  by  publishing  the  same  for  three  weeks  succes- 
sively, in  some  newspaper  printed  in  the  county  where 
such  lands  are  situated.^ 

Appointment  of  guardians.  Where  the  owners  or  heirs 
are  minors,  and  have  no  guardians,  the  widow  applies  to 
the  court  or  surrogate  to  appoint  some  discreet  and  sub- 
stantial freeholder  a  guardian  of  such  infants,  for  the  sole 
purpose  of  appearing  for,  and  taking  care  of  the  interests 
of  such  infants  in  the  proceedings  f  in  which  case,  the 
notice  of  the  application  for  admeasurement,  and  all 
notices  in  the  subsequent  pisoceedings,  must  be  served  on 
such  guardian,  whether  the  infant  reside  within  the  state 
or  not.* 

This  proceeding  under  the  statute  is  the  more  exi^edi- 
tious  course  to  be  pursued  by  the  widow,  in  procuring 
herself  to  be  endowed  of  her  husband's  estate  in  lands ; 
but  these  proceedings  are  no  evidence  of  title,  or  of  any 
thing  more  than  that  the  part  assigned  belongs  to  the 
widow,  after  a  title  is  shown  to  the  whole.^ 

There  is  no  provision  for  trying,  before  the  surrogate, 
the  title  to  dower.  The  proceedings  under  the  act,  are 
founded  npon  the  assumption  that  the  widow  is  entitled 
to  be  endowed  out  of  the  estate  in  question  ;  and  the 
admeasurement  of  dower  under  the  surrogate's  order,  can- 
not affect  or  prejudice  the  right  of  dower,  or  the  legal  or 
equitable  bar  to  it.'' 

After  the  exi^)iration  of  forty  days  from  the  death  of  the 
husband,  his  heirs  or  any  of  them,  or  tlie  owners  of  the  land 
subject  to  dowdr^claimiug  a  freehold  estate  therein,  or  the 
guardians  of  any  such  heirs  or  owners,  may,  by  notice 


M 2  Wend.,  137,  138.  ■*  5  Cow.,    168,   299;    6  Id.,   3IG;    17 
'  2  R.  S.,  488,  §  3.  Johns.,  123 ;  12  Wend.,  137. 

» Idem,  §  4.  "9  Jolins.,  246. 
*  Idem,  §  5. 


278  ADMIXISTKATION  OF  CIVIL  JUSTICE. 

in  writing,  require  the  widow  of  such  husband  to  make 
demand  of  her  dower,  within  ninety  days  after  the  service 
of  such  notice,  of  the  lands  of  her  deceased  husband,  or  of 
such  part  thereof  as  shall  be  specified  in  such  notice.^ 

And  the  widow,  failing  to  make  her  demand  of  dower, 
within  the  time  specified  in  such  notice,  by  commencing 
a  suit,  or  by  an  application  for  an  admeasurement,  as  pro- 
vided by  statute ;  or  not  making  a  demand  within  one 
year  from  the  death  of  her  husband,  although  no  notice 
to  that  eifect  shall  have  been  given  ;  the  heirs  of  the  hus- 
band of  such  widow,  or  any  of  them,  or  the  owners  of  any 
laud  subject  to  dower,  claiming  a  freehold  interest  therein, 
or  the  guardian  of  any  such  heirs  or  owners,  may  apply, 
by  petition,  to  the  supreme  court,  or  to  the  county  court 
of  the  county  where  such  lands  are  situated,  or  to  the 
surrogate  of  the  same  county,  for  the  admeasurement  of 
the  said  widow's  dower  of  the  lands  of  her  husband,  or 
of  such  part  thereof  as  shall  be  specified  in  said  petition.^ 
A  copy  of  such  i)etition,  with  notice  of  the  time  and  place 
of  presenting  the  same,  must  be  personally  served  on  such 
widow,  twenty  days  previous  to  its  presentation.^ 

Order  of  admeasurement.  The  court,  upon  the  hearing 
of  such  application,  made,  either  by  the  widow,  or  by 
any  heir  or  owner,  or  guardian  of  such  heir  or  owner,  may 
order  that  admeasurement  be  made  of  such  widow's  dower 
of  all  the  lands  of  her  husband,  or  of  such  part  thereof  as 
shall  have  been  specified  in  such  application.* 

A2)2)oint  comraissio^iers  to  admeasure. 

The  court  making  such  order,  thereupon  appoints  three 
commissioners,  who  must  be  reputable  and  disinterested 
freeholders,  for  the  purpose  of  making  such  admeasure- 
ment, by  an  order  which  must  specify  the  lands  of  which 
dower  is  to  be  admeasured,  and  the  time  at  which  the 
commissioners  must  report.^  It  is  held,  that  the  surro- 
gate's order  appointing  commissioners  and  specifying  a 
day  for  making  their  report,  is  in  the  nature  of  an  adjourn- 
ment or  continuance  of  the  proceedings ;  and  upon  the 
coming  in  of  the  report  at  the  time,  it  may  be  confirmed, 
on  motion  of  either  party,  without  notice  to  the  other  for 
that  purpose.^ 


2  R.  S.,  489,  §  6.  "  Idem,  §  9. 

Mdem,  §  7.  ^  Idem,  10. 

Idem,  §  8.  »  2  Hill,  543. 


ADMEASUREMENT  OF  DOWEE  BY  PETITION.         279 

The  oath  of  the  commissioners.  Before  entering  upon  their 
duties,  the  commissioners  so  appointed  must  be  sworn, 
either  before  the  surrogate  appointing  them,  or  before 
some  other  officer  authorized  to  take  affidavits,  that  they 
will  faithfully,  honestly  and  imi^artially  discharge  the  duty 
and  execute  the  trust  reposed  in  them  by  such  appoint- 
ment.^ And  any  such  commissioners  so  appointed  dying, 
resigning,  or  neglecting  or  refusing  to  serve,  others  may 
be  appointed  in  their  place  by  the  court  or  surrogate 
appointing  the  first  commissioners,  and  such  newly  ap- 
pointed commissioners  must  take  the  same  oath  above 
stated.^  It  is  held  that  where  one  of  the  commissioners 
die  before  the  execution  of  his  trust,  the  vacancy  may  be 
supplied  by  a  new  appointment  made  by  the  surrogate  for 
the  time  being,  although  the  original  appointment  was 
made  by  his  predecessor.^ 

JSbw  the  commissioners  are  to  execute  their  duties. 

1.  They  are  required  to  admeasure  or  lay  off,  as  speedily 
as  possible,  the  one-third  part  of  the  lands  embraced  in 
the  order  for  their  appointment,  as  the  dower  of  such 
widow,  designating  such  jjart  with  posts,  stones  or  other 
permanent  monuments. 

2.  In  making  such  admeasurements,  they  must  take 
into  view  any  i^ermanent  improvements  made  upon  the 
lands  embraced  in  said  order,  by  any  heir,  guardian  of 
minors,  or  other  owners  since  the  death  of  the  husband 
of  such  widow,  or  since  the  alienation  thereof  by  such 
husband;  and,  when  practicable,  must  award  such  im- 
provements within  that  part  of  the  lands  not  allotted  to 
the  widow;  and  where  not  so  practicable  to  award  the 
same,  they  must  make  a  deduction  from  the  lauds  allotted 
to  such  widow  proportionate  to  the  benefit  she  will  derive 
from  such  part  of  the  said  improvement,  as  shall  be 
included  in  the  portion  assigned  to  her.** 

3.  They  must  make  a  full  and  ample  report  of  their  pro- 
ceedings, with  the  quantity,  courses  and  distances  of  the 

*  Previous  to  the  adoption  of  the  Revised  Statutes,  tlie  widow  wlioso  husband 
died  seised,  was  entitled  to  dower  accordiuj?  to  tlio  imi)roved  viihio  at  the  time  of 
the  assignment,  including  improvements  made  on  the  premises  by  the  lieir  or  hi3 
alienee.  6  Johns.  Ch.,  259  ;  4  Kent.  Com.,  65;  2  Johns.,  485;  11  Id.,  510;  13  Id.,  179. 

•  2  R.  S.,  489,  §  11.  *2   R.  S.,  490,  §  13;  4  Barb.,  23;  10 
»  Idem,  §  12.  Paige,  72;  10  Wend,  483. 

'8  Wend.,  4G0. 


280  ADMmiSTKATIOK   OF   CIVIL  JUSTICE. 

laud  admeasured  aud  allotted  by  tlieua  to  the  widow,  with 
a  description  of  the  i)osts,  stones  and  other  permanent 
monuments  thereof,  and  the  items  of  their  charges,  to  the 
court  by  which  they  were  appointed,  at  the  time  specified 
in  the  order  for  their  appointment. 

4.  They  may  employ  a  surveyor,  with  necessary  assist- 
ance to  aid  them  in  such  admeasurement.^ 

It  is  impracticable,  sometimes,  to  assign  dower  by  metes 
and  bounds,  as  in  the  case  of  a  mill  which  is  not  divisible. 
There  the  widow  may  be  endowed  in  a  special  manner,  as 
by  having  every  third  toll  dish,  or  the  entu-e  mill  every 
third  year  or  month,  or  by  taking  a  share  of  the  profits  in 
some  other  form.  So,  likewise,  in  the  case  of  incorporeal 
hereditaments,  dower  must  be  assigned  in  a  special  man- 
ner, having  respect  to  the  nature  of  the  subject  aud  the 
mode  of  enjoyment.^  And  in  mines  which  have  been 
opened  in  the  lifetime  of  the  husband,  if  dower  cannot  be 
assigned  by  metes  and  bounds,  the  x>arties  may  have 
alternate  occupancy  of  the  whole,  or  the  widow  may  take 
a  third  of  the  rents  aud  profits.^  So,  in  respect  to  a  dwell- 
ing house,  a  woman  may  have  a  rent  allowed  to  her  out 
of  a  house,  for  her  dower  of  the  house,  or  she  may  have  a 
chamber  of  the  same  house  assigned  to  her  in  allow- 
ance of  her  dower  of  the  house.*  But  in  case  of  a  room 
or  chamber  in  a  house  is  assigned,  it  would  seem  that  the 
widow  must  assent  thereto,  or  she  would  not  be  bound  to 
accept  it.** 

Enlarging  tlie  time  of  the  commissioners.  The  court  or 
surrogate  appointing  such  commissioners  may,  upon  their 
application,  or  the  application  of  either  party,  enlarge  the 
time  for  making  their  report ;  and  may,  by  order,  compel 
such  report,  or  discharge  the  commissioners  neglecting  to 
make  the  same,  and  may  appoint  others  in  theu'  places.^ 

Rej^ort  of  the  commissioners.  The  report  is  to  be  made  to 
the  court  or  smTOgate  appointing  the  commissioners,  and 
when  made,  must  be  filed  and  entered  at  large  in  the 
minutes  of  the  court,  or  in  a  book  provided  by  the  surro- 
gate for  that  purpose,  when  made  to  him.''  And  the  court 
or  surrogate  to  whom  the  report  is  made,  may,  at  the  time 
appointed  for  receiving  the  same,  or  at  such  other  time  to 


'  2  R.  S.,  490,  §  13.  '  Perkins,  §  342. 

'  See  Perkins,   §  342 ;   Rop.   Hus.  and  ^  See  2  Hill,  548,  549. 

Wife,  395-399  ;  Park  on  Dow.,  251.  »  2  R.  S.,  490,  §  14, 

*  1  Cow.,  460.  '  Idem,  §  15. 


ADMEASUEEMENT  OP  DOWEE  BY  PETITION.         281 

wMcli  the  hearing  shall  have  been  adjourned,  on  good 
cause  shown,  set  aside  the  said  report,  and  appoint,  as  often 
as  maj^  be  necessary,  new  commissioners,  who  are  to  pro- 
ceed in  the  manner  above  directed.  But  if  the  report  be 
not  set  aside,  the  same  will  be  confirmed  by  order  of  the 
said  court  or  surrogate.^ 

The  effect  of  the  admeasurement.  Such  admeasurement,  so 
made  and  confirmed,  and  not  appealed  from  at  the  expira- 
tion of  thirty  days  trom  the  date  of  such  confirmation, 
becomes  binding  and  conclusive  as  to  the  location  and  extent 
of  the  said  widow's  right  of  dower,  on  the  parties  apply- 
ing for  the  same,  and  upon  all  parties  duly  notified  as 
above  directed.  But  no  person  is  thereby  precluded  from 
controverting  the  right  and  title  of  such  widow  to  the 
dower  so  admeasured.^ 

This  proceeding  is  not  a  substitute  for  proceedings  by 
action,  under  the  Code,  for  dower.  The  widow  may  still 
proceed  by  action,  that  is,  by  summons  and  complaint, 
which  is  a  substitute  for  the  former  proceeding  by  bill  in 
equity.^  The  proceeding  under  the  statute  is  usually 
resorted  to,  because  it  is  the  more  expeditious  course. 
But,  in  these  proceedings,  there  is  no  trial  of  the  title  of 
the  widow  to  dower,  and  consequently  these  proceedings 
are  no  evidence  of  title,  nor  of  anything  more  than  that 
the  part  assigned  belongs  to  the  widow,  after  title  shown, 

&C.'' 

Ejectment  to  recover  dower  admeasured.  At  the  expiration 
of  thirty  days  from  the  date  of  confirmation,  if  there  has 
been  no  appeal  therefrom,  the  widow  may  bring  and  main- 
tain an  action  of  ejectment,  to  recover  i)ossession  of  the 
lands  so  admeasured  to  her  for  her  dower.^  In  defense  to 
this  action,  her  right  of  dower  may  be  controverted.^ 

In  bringing  this  action,  the  plaintiff  should  declare  for 
the  specific  premises  admeasured,  and  not  declare  generally 
for  an  undivided  third  part.^  The  action  is  commenced  by 
summons,  or  summons  and  complaint,  under  the  Code,  and 
the  general  provisions  of  the  statute  relating  to  actions 
concerning  real  property  apply  to  the  action.'^ 

Appeals.  Where  the  commissioners  have  been  appointed 
by  a  county  court  or  by  a  surrogate,  the  widow  and  any 

'  2  K.  S.,  490,  §  16.  *  5  Cow.,  168,  299  ;  6  Id.,  316  ;  VI 

*  Idem,  §  17  ;  5  N.  Y.,  394 ;  9  Wend.,    Johns.,  123  ;  12  Wend.,  137. 

310;  17  Johns.,  122.  »  2  R.  S.,  491,  §  18. 

•  2  Sandf.,  711,  715 ;  4  Paige,  98.      •  9  Wend.,  310. 


n.— 36 


'  See  2  R.  S.,  302 ;  Code,  §§  455,  471. 


282  ADMLSnSTKATIOX  OF   CIVIL  JUSTICE. 

heir  or  owner  of  lands  affected  by  the  proceeding,  or  the 
guardian  of  such  heir  or  owner,  may,  within  thirty  days 
after  the  order  of  confirmation  of  the  report  of  the  com- 
missioners, by  such  court  or  surrogate,  appeal  from  such 
order  to  the  supreme  court.^  Where  the  commissioners 
are  appointed  at  the  special  term  of  a  court,  the  confirma- 
tion is  made  at  its  special  term,  and  the  appeal  is  thence 
to  the  general  term.  Thus,  where  the  order  of  confirmation 
is  made  by  the  court  of  common  pleas  of  the  city  and  county 
of  New  York,  the  appeal  is  to  the  general  term  of  said 
court.^ 

The  appeal  must  be  filed  with  the  surrogate  or  with  the 
clerk  of  the  court  granting  such  order  ;  but  it  is  not  effec- 
tual or  valid  for  any  purpose,  until  a  bond  to  the  adverse 
party  shall  be  executed  by  the  appellant,  and  filed  with 
such  surrogate  or  clerk,  with  security,  to  be  approved  by 
the  surrogate  or  a  jndge  of  the  court  by  which  such  order 
was  made,  and  to  be  indorsed  by  an  indorsement  on  such 
bond,  in  the  sum  of  one  hundred  dollars,  conditioned  for 
the  diligent  prosecution  of  such  appeal,  and  for  the  pay- 
ment of  all  costs  adjudged  by  the  supreme  court,  &c., 
against  the  appellant ;  and  no  other  notice  or  i)roceeding 
is  necessary  to  perfect  such  appeal.^ 

Papers  to  le  certified.  The  surrogate,  or  the  clerk  of  the 
court  with  whom  the  appeal  bond  is  filed,  on  the  receij)t 
of  his  fees  for  such  services^  must  transcribe  the  petition, 
afiidavits,  notices,  orders,  reports,  and  all  other  proceed- 
ings on  the  said  application,  together  with  the  said  appeal, 
and  certify  them  under  his  ofiicial  seal,  and  transmit  them 
to  the  appellate  court.*  And  the  court  must  proceed  to 
hear  and  determine  said  appeal,  and  review  all  the  pro- 
ceedings upon  the  said  application,  and  do  whatever  is 
just  in  the  premises.^  The  court  will  look  only  to  the 
papers  returned.^ 

The  appeal  is  to  be  heard  at  general  term,  and  is  brought 
on  by  notice,  and  conducted  as  other  appeals  from  orders. 
Notices  of  the  hearing,  and  all  other  necessary  notices  in 
said  court,  may  be  rirved  on  any  party  not  residing  within 
the  state,  by  leaving  the  same  with  the  surrogate  or  clerk 


»  2  R.  S.,  491,  §  19.  « Idem,  §  21. 

'  Code,  §§  8,  348,  349,  471 ;   9  How.,  ^  Idem,  §  22. 

304,  311 ;  Laws  1854,  cM.  270,  §  1.  '2  HilL  543. 
'  2  E.  S.,  491,  §  20. 


ADMEASUEEXEXT  OF  DOWEE  BY  PETITION.         283 

of  the  court  from  whose  order  the  appeal  is  made,  for  the 
use  of  such  party.^ 

The  supreme  court  may,  by  rule,  direct  further  returns 
to  be  made  whenever  necessary.  It  may  also  establish 
such  rules  to  regulate  the  practice  on  appeals  as  it  deems 
expedient.^ 

What  OR  reversal  of  admeasurement.  In  case  of  the 
reversal  of  the  order  of  confirmation,  the  court  must  cause 
the  same  to  be  certified  to  the  surrogate,  or  court  below, 
to  the  end  that  new  commissioners  may  be  appointed,  or  a 
new  admeasurement  may  be  had,  as  the  supreme  court 
shall  direct;  or,  the  supreme  court  may  proceed  to  ap- 
point commissioners  to  make  admeasurement,  in  the  same 
manner  as  upon  an  original  application  to  such  court; 
and  the  like  in'oceedings  must  be  had  thereon.^ 

Wliat  on  affirmance.  In  case  of  affirmance  of  the  order 
of  confirmation,  the  supreme  court  may,  in  its  discretion, 
award  the  costs  to  be  paid  by  the  appellant,  and  to  be 
taxed  as  the  court  shall  direct ;  and  the  original  order  of 
confirmation,  and  the  admeasurement  thereby  confirmed, 
become  binding  and  conclusive,  and  authorize  an  action 
of  ejectment.^ 

The  costs  in  these  proceedings. 

The  fees  allowed  to  commissioners  are  two  dollars  for 
each  day's  actual  and  necessary  service.^  When  a  sur- 
veyor is  employed,  he  is  allowed  for  actual  service  in 
surveying,  laying  out,  marking  and  mapping  the  premises 
of  which  dower  is  admeasured,  two  dollars  and  fifty  cents 
per  day,  and  for  each  of  his  necessary  chain  and  flag  bear- 
ers, and  other  necessary  assistants,  one  dollar  per  day.^ 

When  the  proceedings  are  in  county  court  or  before  the 
surrogate,  the  costs  are  to  be  taxed  at  the  rate  allowed  for 
such  services  in  those  courts  prior  to  the  adoption  of  the 
Code.^  But  in  the  supreme  court  or  court  of  common 
pleas  of  the  city  of  ^qvi  York,  costs  are  allowed  in  the 
discretion  of  the  court;  and,  when  allowed,  they  are 
taxed  at  the  rate  allowed  for  similar  services  in  civil 
actions.  "^ 

On  appeal,  the  costs  are  paid  by  the  party  applying  for 

'  2  R.  S.,  492,  §  27.  '  Idem,  §  34. 

*  Idem,  8  23.  "  Code,  §  471 ;  1  Brad.,  37. 

» Idem,  §  24.  '  L.  1854,  592. 
2  R.  S.,  643,  §  35. 


284  ADMINTSTKATIOir  OF   dVIL  JUSTICE. 

the  admeasurement,  and  in  case  of  affirmance,  the  court, 
in  awarding  costs,  will  require  the  appealing  party  to  pay 
one-half  the  costs  and  expenses,  &c.^  The  supreme  court 
may,  also,  in  its  discretion,  award  costs  of  the  appeal  to 
be  paid  by  the  appellant,  and  to  be  taxed  as  the  court 
shall  direct.^ 


CHAPTER  XIX. 

GENEEAL  LIEX  LA.W  OF  MECHA]STCS,  &C.  ;  NOT  APPLICA- 
BLE TO  THE  CITY  AED  COUNTY  OF  NEW  YOKK  AND  THE 
COUNTY   OF  EEIE. 

In  what  cases  and  how  a  lien  is  created. 

Any  person  who  shall  jDerform  any  labor  in  erecting, 
altering  or  repairing  any  house,  building,  or  appurtenances 
to  any  house  or  building,  and  every  resident  who  shall  fur- 
nish any  materials  therefor,  shall,  on  filing  with  the  town 
clerk  of  the  town  in  which  the  property  is  situated,  the 
notice  required  by  statute,  have  a  lien  for  the  value  of 
such  labor  and  materials,  upon  such  house  or  building  and 
appurtenances,  and  upon  the  lot,  parcel  or  farm  of  land 
upon  which  the  same  shall  stand,  to  the  extent  of  the  right, 
title  and  interest  of  the  owner  of  the  property  existing  at 
the  time  of  filing  the  said  notice.^ 

The  person  having  the  legal  title  to  the  land  on  which 
the  erection  is  made,  is  not,  necessarily,  the  owner  of  the 
building  within  the  meaning  of  the  statute.  Thus,  where 
the  owner  of  land  contracted  with  a  purchaser  to  convey  the 
land  to  him  for  a  certain  sum,  and  to  loan  him  money,  from 
time  to  time,  for  the  erection  of  a  building  thereon,  the 
price  of  the  land  and  the  money  loaned  to  be  secured  by 
mortgage  upon  the  premises,  at  the  completion  of  the 
building,  at  which  time  the  land  was  to  be  conveyed,  it 
was  held  that  the  vendor  of  the  land  was  not  the  owner 
of  the  building,  within  the  meaning  of  the  mechanics'  lien 


'  2  R.  S.,  492,  §  26.  3  j^^ws  1854,  ch.  402,  §  1 ;  Laws  1858, 

Idem,  ^24;  2  HUl,  544.  ch.  204;   4  N.  Y.  S.  at  L.,  673,  679. 


GENEKAL  LIEN  LAW  OF  MECHANICS.  285 

act  ;^  and  that  the  person  furnishing  materials  for  such 
building  could  not,  under  that  statute,  compel  payment 
for  those  materials  furnished  to  the  purchaser  out  of  the 
money  agreed  to  be  advanced  hj  the  seller  of  the  land 
to  the  purchaser  thereof.  Such  money  is  money  agreed  to 
be  loaned,  and  not  a  debt  agreed  to  be  paid,  and  is  not 
within  the  statute.^ 

The  lien  attaches  wherever  the  labor  is  performed  or 
materials  furnished  for  a  building  under  a  contract  with 
the  owner  thereof,  however  temporary  may  be  his  interest 
in  the  land  on  which  it  stands,  to  the  extent  of  his 
interest.  Thus,  it  exists  upon  a  building  erected  by  a 
tenant  from  year  to  year  or  at  will,  when,  as  between 
landlord  and  tenant,  the  latter  has  the  right  to  remove  the 
building.^  But  the  owner  must  have  some  title  at  the  time 
of  liling  the  notice  with  the  clerk.^ 

The  word  "  owner,"  within  the  meaning  of  this  statute, 
is  held  to  mean  the  person  employing  the  contractor  to  do 
^  the  work,  and  for  whom  the  work  is  clone  f  and  any  person 
I  may  acquire  the  lien  who  has  i^erformed  the  labor  or  fiir- 
'(  nished  the  materials  for  the  building,  &c.,  excepting  that 
the  statute  requires  that  the  person  furnishing  the  mate- 
rials shall  be  a  resident  of  one  of  the  counties  over  which 
this  act  extends,  and,  perhaps,  of  the  county  in  which  the 
building  is  situated.^ 

The  language  of  the  statute  is  confined  to  the  person 
performing  the  labor  or  furnishing  the  materials,  <fcc.,  and, 
therefore,  the  right  to  acquire  the  lien  does  not  extend  to 
an  assignee  of  the  claim  for  labor  i)erformed  or  for  mate- 
rial provided.' 

The  claimant,  who  has  agreed  to  take  the  note  of  the 
owner,  payable  in  one  year,  with  a  satisfactory  indorser, 
may  still  proceed  to  create  and  enforce  his  lien,  if  the  note 
is  not  delivered  pursuant  to  the  contract.^ 

Whe7i  labor  and  materials  furnished  upon  the  credit  of-  the  contraC' 

tor,  dtc. 

The  statute  further  provides,  that  whenever  the  labor 
performed  or  the  materials  provided  are  furnished  upon  the 


'  Loonie  v.  Eogan,  9  N.  T.,  435.  •  Laws  1854,  ch.  402,  §§  1,  5,  6;  Laws 
"1(16113,440.  1858,    ch.   204;    4  N.  Y.  S.  at  L., 

'  Ombony  v.  Jones,  19  N.  T.,  234.  673,  679. 

*  29  Barb.,  631.  '  4  Abb.,  263. 

*  11  Barb.,  9.  •  3  E.  D.  Smith,  621. 


286  ADMIKISTEATION  OP  CIVIL  JUSTICE. 

credit  of  any  contractor,  who  shall  have  made  a  contract 
therefor  with  the  owner  of  the  property,  or  upon  the  credit 
of  any  sub-contractor,  or  the  assignee  of  any  contractor,  the 
owner  of  the  property  shall  not  be  obliged  to  pay  for,  or 
on  account  of  aijy  labor  performed  or  materials  furnished 
for  such  house,  &c.,  any  greater  amount  than  the  price 
stipulated  and  agreed  to  be  paid  therefor,  in  and  by  said 
contract  ;^  unless,  in  case  of  collusion  of  the  owner  of  any 
building  altered  or  repaired  by  contract,  he  pay  money  to 
some  person  for  the  purpose  of  avoiding  the  provisions  of 
the  statute ;  or  unless  he  paj'  in  advance  of  the  terms 
of  the  contract,  or  before  the  right  of  the  claimant  to  tile 
a  notice  of  lien  has  expired,  and  the  amount  remaining 
due  to  the  contractor,  &c.,  is  insufficient  to  satisfy  the 
demands  made  in  conformity  herewith.^ 

Lien^  hoio  created. 

"The  lien  is  created  by  the  proper  service  of  notice  upon 
the  town  clerk  of  the  town  in  which  the  property  is 
located,  within  thirty  days  after  the  performance  and 
completion  of  the  labor  or  the  final  furnishing  of  the 
materials.  The  notice  is  served  by  the  contractor,  sub- 
contractor, laborer  or  person  furnishing  the  materials,  as 
the  case  may  be.^  The  notice  must  be  in  writing,  and 
must  specify  the  amount  of  the  claim,  and  the  i)erson 
against  whom  the  claim  is  made,  the  name  of  the  owner 
of  the  building,  and,  when  in  any  city  or  village,  the  situ- 
ation of  the  building  by  street  and  number,  if  the  street 
be  known.^  It  should  also  show,  that  the  labor  was  per- 
formed, &c.,  in  building,  altering  or  repairing  the  house, 
building  and  appurtenances  of  the  owner,  &c. 

The  particulars  of  such  notice  are  entered  by  the  clerk 
in  a  book  kept  in  the  office  f^r  that  purpose,  called  the 
"Lien  Docket,"  suitably  ruled  in  columns,  headed  "  claim- 
ants," "against  whom  claimed,"  "owners,"  "buildings," 
"  amount  claimed,"  and  the  date  of  the  filing  of  the  notice, 
hour  and  minute,  and  what  proceedings  have  been  had.^ 
and  no  lien  attaches  to  said  land,  buildings  or  appurte- 
nances, unless  such  notice  be  served  and  filed  by  said  clerk ; 
and  when  so  done  it  operates  as  an  incumbrance  upon 
said  property.* 

*  Laws  1854,  ch.  402,  §  2 ;  Laws  1858,     '  Laws  1854,  ch.  402.  §  4. 

ch.  204;  4  N.  Y.  S.  at  L.,  674,  6T9.     *  Idem;  3  E.  D.  Smitli,  621. 

*  Idem,  S  3. 


GEKEEAL  LIEN  LAW  OF  MECHANICS:  287 

Altlioiigb  the  statute  does  not  specifically  require  that 
the  notice  shall  set  out  the  character  in  which  the  labor 
has  been  performed,  as  whether  by  contractor,  sub-con- 
tractor, or  general  laborer,  it  would,  nevertheless,  be  well 
to  allege  the  fact  in  such  respect.^ 

.  The  notice  must  be  filed  within  the  time  prescribed  by 
statute,  although  it  is  not  necessary  to  allege  in  the  notice 
that  it  is  so  filed  ;^  and  if  it  be  tiled  after  the  time  limited, 
it  may  be  removed  on  motion  to  the  court;  or  the  omission 
to  file  it  in  season  may  be  taken  advantage  of  on  trial.^ 

The  lien  is  created  by  statute,  in  the  particular  manner 
described,  and  therefore  the  statute  must  be  strictly  fol- 
lowed.^ The  court  will  not  disregard  or  amend  any 
defects  in  the  notice  to  be  filed  which  the  statute  has  made 
material.^ 

Continuance  of  the  lien. 

The  lien  thus  created  will  continue  for  one  year,  unless 
sooner  discharged  by  the  court,  or  by  some  legal  act  of 
the  claimant  in  the  proceedings ;  but  when  a  judgment  is 
rendered  therein,  and  docketed  with  the  couuty  clerk 
within  said  year,  it  becomes  a  lien  also  upon  the  real 
property  of  the  person  against  whom  it  was  obtained,  to 
the  same  extent  as  other  judgments.*  The  lien,  created 
by  filing  the  notice  as  above  with  the  town  clerk,  is  not 
prolonged  by  obtaining  a  judgment  against  the  owner 
within  the  year,^  and  the  action  to  enforce  such  lien  must 
be  commenced  within  one  year  or  the  lien  will  be  dis- 
charged. It  may,  however,  be  sooner  discharged.  Thus, 
the  owner,  or  his  attorney  or  agent,  may  serve  upon  the 
claimant  a  notice  requiring  him  to  commence  an  action 
for  the  enforcement  of  his  lien  within  twenty  days  after 
the  service  of  such  notice ;  and  if  the  action  is  not  com- 
menced within  the  time  mentioned  in  the  notice,  the 
owner  may  file  with  the  town  clerk  an  affidavit  of 
the  service  of  such  notice,  and  of  the  failure  of  the  claim- 
ant to  commence  such  action  within  the  i)roper  time,  when 
the  lien  will  be  discharged.*' 

Such  lien  may  also  be  discharged  by  filing  with  the 


'  3  E.  D.  Smith,  621.  *  3  N.  T.,  305. 

"  2  Id.,  611.  •  L.  1854,  §  23,  sub.  4;  4  N.  Y.  S.  at 

'  1  Id.,  654.  L.,  679. 

*  L.  1854,  ch.  402,  §  20;  4  N.  T.  S.  at 
L.,  678. 


288  ADMnflSTEATIOlf  OF  CIYTL  JUSTICE. 

town  clerk  a  certificate  of  tbe  claimant,  or  his  successor  in 
interest,  properly  acknowledged  and  proved,  stating  that 
the  lieu  has  been  paid  or  discharged,^  or  by  depositing 
with  the  justice  or  clerk  of  the  court  a  sum  of  money 
equal  to  double  the  amount  claimed,  which  money  is  to 
be  held  subject  to  the  determination  of  the  lien  f  or,  by 
an  entry  of  the  town  clerk,  made  in  the  book  of  liens,  that 
the  proceedings  on  the  part  of  the  claimant  have  been  dis- 
missed by  the  court  in  which  it  was  brought,  or  that  a 
judgment  had  been  rendered  thereon  against  the  claimant.^ 

Where  and  how  such  lien  is  enforced. 

The  supreme  court,  the  county  courts,  and  justices' 
courts,  have  jurisdiction  of  actions  to  enforce  these  liens 
of  the  mechanic,  and  they  are  deemed  to  be  always  open 
for  such  purpose.*  The  jurisdiction  of  the  justice's  court  is 
limited  to  the  town  in  which  the  building,  &c.,  is  situated, 
and  to  a  claim  not  exceeding,  in  amount,  one  hundred 
dollars.^  In  the  supreme  court  or  county  court  the  action 
must  be  brought  within  the  county  in  which  the  premises 
are  situated ;  and,  in  either  of  the  courts,  the  action  must 
be  brought  within  one  year  from  the  date  of  the  lien.^ 

The  parties. 

The  claimant  and  the  oivner  are  the  only  parties  made 
necessary  by  statute,  though  other  parties  may  be  brought 
in  if  necessary^  The  statute  provides,  that  any  contractor, 
sub-contractor  or  laborer  performing  any  work,  or  any 
assignee  thereof,  or  any  resident  of  the  county  furnishing 
any  materials,  as  provided  by  this  act,  may,  after  the 
labor  has  been  performed,  or  materials  furnished,  and 
after  the  service  of  the  notice  herein  required,  bring  an 
action  in  the  supreme  court,  or  in  the  county  court,  &c., 
when  the  amount  exceeds  fifty  dollars,  to  enforce  said 
lien.^ 

Proceedings  in  justice's  court. 
If  the  amount  of  the  lien  is  one  hundred  dollars,  or  less, 
a  justice  of  the  peace  of  the  town  where  the  premises  are 


'  L.  1854,  §  23,  sub.  4.  »  Idem,  8  8. 

Idem,  sub.  2.  «  idem  8  20 

'  Idem,  sub.  3.  »  2  E.  D.  Smith,  577. 

«L.  1854,  §§6,  7,  8.  "L.  1854,  §6.^ 


GEXERAIi  LIEN  LAW  OF  MECHANICS.  289 

situated  has  jurisdiction  in  these  proceedings.^  The  action 
is  commenced  by  the  service  of  a  notice  upon  the  owner 
or  his  agent,  requiring  the  owner  to  appear  before  such 
justice ;  and  such  notice  must  contain  a  statement  of  the 
facts  constituting  the  claim,  and  the  amount  thereof, 
requiring  the  owner  to  appear  before  such  justice,  in  per- 
son or  by  attorney,  at  a  time  therein  named,  not  less  than 
thirty  days  after  the  service  of  such  notice,  and  answer 
the  same;  or,  in  default  thereof,  that  the  claimant  will 
take  judgment  against  the  owner  for  the  amount  claimed 
to  be  due,  with  interest  and  costs.^  A  bill  of  particulars 
of  the  amount  claimed  must  also  be  served  with  such 
notice,  and  it  must  be  verified  by  the  oath  of  the  claimant, 
or  his  attorney,  to  the  effect  that  the  same  is  true. 

This  notice  and  bill  of  particulars  may  be  personally 
served  upon  the  owner  or  his  agent,  at  any  jjlace  within 
the  state,  when  possible ;  but  when  the  owner  or  his  agent 
are  absent  from  the  state,  or  cannot  be  found  therein  by 
reason  of  concealment,  then  service  may  be  made  by  leav- 
ing a  copy  of  the  notice  and  bill  of  i)articulars  at  the 
owner's  last  place  of  residence,  and  publishing  a  copy  of 
the  notice  for  three  weeks  successively,  in  a  newspaper 
published  in  the  county  where  the  property  is  situated.^ 
Where  the  notice  is  by  publication,  the  thirty  days  com- 
mences with  the  date  of  the  first  publication  of  the  notice.^ 
After  the  action  has  been  thus  commenced,  an  entry 
should  be  made  in  the  lien  docket  of  the  town  clerk,  show- 
ing the  commencement  of  the  action.  This  is  done  to 
preserve  the  rights  of  the  plaintiff,  and  prevent  the  equi- 
ties of  other  jjarties  from  arising. 

Where  the  owner  does  not  appear  and  answer  as  re- 
quired by  the  notice,  the  plaintiff'  will  jjroceed  to  file  with 
the  justice  an  affidavit  of  the  service  of  the  notice  and  the 
bill  of  particulars,  and  also  of  the  failure  of  the  owner  to 
appear  and  answer  as  therein  required,  when  the  justice 
may  assess  the  amount  of  the  plaintiff's  claim.*  The 
same  kind  and  amount  of  evidence  must  be  introduced 
to  establish  the  justice  of  the  plaintift"'s  claim,  as  if  the 
action  were  pending  in  the  supreme  court  or  county  court.^ 

If  the  owner  appears,  he  x>uts  in  his  answer  in  writing, 
duly  verified,  together  with  a  bill  of  particulars  of  any 

•  4  N.  T.  S.  at  L.,  G75,  §  8.  "  Idem,  §  11. 

"  Idem,  676,  §§  9,  10.  '  See  post. 

'  Idem,  §  9. 

n.— 37 


290  ADMENISTRATION  OF   CIVIL  JUSTICE. 

off-set  he  may  wisli  to  make.^  The  verification  should  be 
by  the  owner  or  his  agent,  to  the  effect  that  the  answer  is 
in  all  respects  true.^  The  trial  of  the  issue  thus  formed 
is  conducted  in  the  same  manner  as  other  issues  in  the 
justice's  court;  and  costs,  judgments  and  appeals  are 
taxed,  entered  and  carried  forward  as  in  other  cases  in 
that  court. 

Hoxo  the  action  is  commenced  iti  the  supreme  court  and  county  court. 

The  action  is  commenced  by  serving  a  notice,  containing 
a  statement  of  the  facts  constituting  the  claim,  and  the 
amount  thereof,  and  also  a  bill  of  particulars  of  the  amount 
claimed,  upon  the  owner  of  the  property,  or  his  agent, 
requiring  the  said  owner  to  appear,  in  person  or  by  attor- 
ney, within  thirty  days  after  such  service,  and  answer  the 
same,  and  serve  a  copy  of  such  answer,  together  with  a 
notice  of  any  set-off  that  he  may  have,  on  the  claimant  or 
his  attorney  ;  or,  in  default  thereof,  that  the  claimant  will 
take  judgment  against  the  said  owner,  for  the  amount 
claimed  to  be  due  for  the  labor  performed  or  the  materials 
furnished,  with  interest  thereon,  and  costs.^  Where  the 
amount  claimed  is  for  one  hundred  dollars  or  under, 
the  action  may  be  commenced  in  a  justice's  court,  in  the 
town  where  the  property  is  situated.* 

The  notice  is  to  be  served  personally,  if  possible,  on  such 
owner  or  his  agent ;  but  where  this  cannot  be  done,  by  rea- 
son of  absence  from  the  state,  or  concealment  therein,  then 
it  is  made  by  leaving  a  copy  of  such  notice  at  the  last  place 
of  residence  of  such  owner,  and  publishing  a  copy  thereof, 
for  three  weeks  successively,  in  a  newspaper  published 
in  the  county  where  the  property  is  situated ;  in  which 
case,  the  said  thirty  days  commences  to  run  from  the  date 
of  the  first  publication  of  such  notice.^  The  bill  of  par- 
ticulars need  not  be  published  with  such  notice." 

When  the  complainant  has  followed  the  precise  course 
prescribed  by  the  statute  to  create  the  lien,  and  to  bring 
it  to  a  close,  and  has  served  his  complaint,  or  his  statement 
and  bill  of  particulars  to  obtain  an  issue,  if  it  should  become 


M  N.  T.  S.  at  L.,  67G,  §  12.  '  Idem.  §  1. 

"  Laws  1854,  ch.  402,  §  6;  4  N.  Y.  S.  at  L.,  675,  §§  6,  10;  the  bill  of  particu- 
lars should  contain  all  the  items  of  the  plaintiff's  claim,  and  he  can  recover  for 
none  not  contained  therein,  3  Abb.,  475. 

*  Idem,  §  8.  •  Idem,  8  10. 

'  Idem,  §  9. 


GENERAL  LIEN  LAW   OF  MECHANICS.  291 

necessarj'^  to  bring  in  another  party,  tliat  the  court  might 
do  full  justice  to  all  interested,  such  party  may  then  be 
brought  in,  on  the  order  of  the  court,  made  on  motion  or 
petition.^  Objection  cannot  be  taken  to  the  proceeding, 
because  of  the  omission  of  such  party. 

Proceedings  in  case  of  default. 

In  case  the  defendant  does  not  appear,  as  required  by 
the  notice  given,  if  the  action  be  in  the  supreme  court 
or  the  county  court,  the  claimant,  on  filing  with  the  county 
clerk  an  affidavit  of  the  service  of  such  notice  and  bill  of 
particulars,  and  of  the  failure  of  the  defendant  or  owner 
of  the  property  to  appear  as  therein  required,  may  have 
the  amount  of  his  said  claim  assessed  by  said  clerk,  and 
judgment  may  be  entered  for  the  damages  so  assessed, 
and  for  costs  ;  and  execution  may  be  issued  thereon  as 
upon  other  judgments  in  said  courts,  in  actions  arising 
on  contract  for  the  recover}^  of  money  only,  except  that 
the  execution  shall  direct  the  ofiicer  to  sell  the  right,  title 
and  interest  which  the  owner  had  in  the  premises  at  the 
time  of  filing  the  notice  prescribed.^  In  his  recovery,  he 
is  limited  to  the  amount  of  his  claim  as  stated  in  his  notice 
filed,  with  interest  and  costs.-^ 

If  the  notice  to  enforce  the  lien  was  served  by  publica- 
tion, the  affidavit  of  service  must  show  the  fact  of  publi- 
cation in  the  manner  directed,  and  also  the  facts  justifying 
such  service  by  publication  ;  and,  upon  the  assessment  of 
his  damages,  the  plaintiff"  must  produce  evidence  to  estab- 
lish the  value  of  his  labor  or  materials,  and  that  the  same 
was  performed  or  used  by  the  said  owner  or  his  agent, 
original  contractor,  or  assignee  of  such  contractor,  in  the 
erection,  altering  or  repairing  of  such  house,  building  or 
appurtenance.*  He  should  also  produce  a  copy  of  the 
notice  of  lien,  duly  certified  by  the  town  clerk,  whose  cer- 
tificate should  show  the  fact  and  time  of  filing  such  notice.' 

The  appearance  of  the  defendant. 

Within  thirty  days  after  the  service  of  such  notice  and 
bill  of  particulars,  upon  the  owner  or  defendant,  such 
defendant  must  personally  serve  the  claimant  or  his  attor- 


■  See  1  E.  D.  Smith,  719.  *  4  N.  Y.  S.  at  L.,  G75,  §  5. 

'  4  N.  Y.  S.  at  L.,  676,  §  11.  »  Nott's  Lien  Law,  206. 

'  1  E.  D.  Smith,  671. 


292  ADMINISTRATION   OF   CIATEL  JUSTICE. 

ney  with  a  copy  of  Lis  answer,  and  notice  of  set-off,  if  any 
be  bas,  duly  verified  by  bis  oatb,  or  tbe  oatb  of  bis  agent 
or  contractor,  to  tbe  effect  tbat  tbe  same  is,  in  all  respects, 
true  ;  and,  failing  to  do  tbis,  bis  detault  may  be  entered, 
and  judgment  be  taken.'  In  bis  answer,  tbe  defendant 
may  set  up  a  set-off  or  demand  against  tbe  claimant,  otber 
tban  one  arising  out  of  tbose  matters  connected  witb  sucb 
contract.^ 

Tlie  issue,  how  formed. 

The  action  having  been  brought  in  the  supreme  court 
or  in  the  county  court,  tbe  issue  is  formed  by  the  service 
of  tbe  notice  and  tbe  bill  of  particulars,  on  tbe  part  of  tbe 
claimant,  and  tbe  owner's  answer,  duly  verified,  with  a  bill 
of  particulars  of  set-off,  if  any,  annexed  to  the  answer.^ 
Tbe  answer  and  bill  of  particulars  of  set-off  of  the  defend- 
ant, must  be  served  personally  upon  tbe  claimant.* 

A  bill  of  particulars  is  required  to  be  -served  by  tbe 
defendant,  only  when  be  claims  a  set-off;  and  the  bill  con- 
sists of  the  particulars  of  sucb  set-off.  If  the  defendant 
seeks  to  recouj)  his  damage  for  imperfections  in  the  work, 
be  need  not  serve  a  notice  of  set-off  for  that  purpose.^ 

Proceedings  after  is&ae. 

After  the  issue  shall  have  been  joined  in  the  supreme 
court  or  in  the  county  court,  and  at  least  ten  days  before 
tbe  commencement  of  the  court,  tbe  case  may  be  noticed 
for  trial,  and  be  put  upon  the  calendar  of  said  court,  by 
either  party  furnishing  tbe  clerk  of  the  court  witb  a  note 
of  issue,  as  is  required  in  other  actions,  and  thereafter  tbe 
proceedings  shall  be  had  as  in  otber  actions  in  said  courts, 
arising  on  money  demands  upon  contracts.^ 

The  proofs  required  to  be  made  by  tbe  claimant,  aside 
from  tbat  which  tbe  statute  especially  imposes  upon  him, 
to  show  that  be  is  properly  in  court,  according  to  the  pro- 
visions of  the  lieu  law,  are  tbe  same  as  would  be  required 
of  him  were  he  seeking  to  recover,  in  an  ordinary  action, 
for  work  performed  and  materials  provided.  The  addi- 
tional proofs  required  are,  that  the  labor  performed  or 
materials  furnished,  were  so  performed  and  furnished  as  to 

M  N.  Y.  S.  at  L.,  675,  §  7.  "  Idem,  §  7. 

"  1  E.  D.  Smith,  691 ;  4  Hill,  193.  ''  1  E.  d!  Smith,  697. 

"  Laws  1854,  ch.  402,  §  13  ;  4  N.  T.  S.  '  4  N.  Y.  S.  at  L.,  677,  §  14. 
at  L.,  677,  §  13. 


GENERAL  LIEN  LAW  OF  IIECHANICS.  293 

bring  him  within  the  provisions  of  the  statute  ;  and  also, 
tbat  he  had  acquired  a  valid  lien  upon  the  premises,  as 
against  the  owner. 

The  proceeding  to  foreclose  such  lien,  is  a  proceeding  in 
rem ;  and  the  tkst  step  in  the  proceeding,  after  the  parties 
are  in  court,  is  to  establish  a  lien,  without  which  there  is 
no  foundation  for  the  proceeding.^  Therefore,  all  facts 
necessary  to  establish  the  existence  of  such  lien  upon  the 
premises,  as  against  the  owner,  must  be  proved.  He 
should  show  the  notice  of  lien,  and  that  the  same  was 
properly  filed.  This  is  done  by  producing  a  copy  of  the 
original  notice,  duly  certified  by  the  county  clerk,  stating 
the  fact  and  time  of  its  filing.^ 

The  owner  may  make  either  a  defense  generally,  which 
he  would  be  entitled  to  make  in  an  ordinary  action  for  the 
recovery  of  the  value  of  the  work  performed  or  for  mate- 
rials furnished,  and,  beside,  he  may  avail  himself  of  any 
failure  or  omission  on  the  part  of  the  claimant  to  comply 
with  the  essential  requirements  of  the  statute  to  establish 
or  enforce  such  lien.  After  the  issue  is  joined  as  provided 
by  statute,  and  the  cause  is  placed  upon  the  calendar,  the 
action  is  to  be  governed  and  tried  in  all  respects  as  upon 
issues  joined  and  judgment  rendered  in  other  actions 
arising  on  money  demands  upon  contracts  in  said  courts.^ 

tTudgment. 

It  would  seem  that  the  judgment  is  to  be  general  in  its 
character  ;  that  is,  the  statute  makes  no  provision  for 
any  other  judgment  than  a  general  one  to  be  rendered  in 
these  cases.^  The  judgment  thus  rendered  becomes  a  lien 
upon  the  real  property  of  the  party  against  whom  it  is 
rendered,  the  same  as  other  judgments.  The  transcript 
of  judgments  taken  under  this  act,  headed  "Lien  docket," 
is  to  be  furnished  by  the  clerk  of  the  county  where  the 
same  was  rendered  and  docketed,  to  the  successful  party, 
who  may  file  the  same  with  the  count}^  clerk  of  any  other 
county,  and  thereby  obtain  a  lien  upon  the  real  proi)erty 
of  the  judgment  debtor  in  such  county.^  If  the  judgment 
is  against  the  claimant,  the  lien  is  discharged,  ami  the  town 
clerk  is  required  to  enter  the  word  "Discharged,"  under 
the  last  head  in  his  lien  docket,  on  receiving  a  transcript 
of  such  judgment.* 

'  1  E.  D.  Smith,  663.  ="  See  §§  11,  14. 

»  4  N.  Y.  S.  at  L.,  677,  §  14.  *  Idem,  §  17.       * 


294 


ADMINISTEATION  OF   CIVIL  JUSTICE. 


Execution. 

The  executions  issued  ou  judgments  in  these  proceed- 
ings,  are  both  general  and  special  in  their  character.  They  ' 
are  general  in  this,  that  they  are  issued  upon  such  judg- 
ments for  the  collection  and  enforcement  of  such  claims, 
in  the  same  manner  as  executions  upon  other  judgments  in 
said  courts,  in  actions  arising  on  contract  for  the  recovery 
of  money  only.  They  are  special,  in  that  the  execution 
must  direct  the  officer  to  sell  the  right,  title  and  interest 
which  the  owner  had  in  the  premises  at  the  time  of  filing  the 
notice  of  said  lien.^  It  is  to  be  observed  that  the  execution 
directs  the  sale  of  the  owner's  interest  in  the  property, 
rather  than  the  sale  of  the  property  itself ;  therefore,  an 
execution  directing  the  sale  of  the  property  itself  would 
"be  irregular.^  But  when  the  execution  is  against  other 
property,  in  another  county,  it  would  be  in  the  usual  form, 
and  be  directed  and  executed  in  the  usual  manner.  So, 
if  the  execution  is  against  the  claimant  for  costs,  it  is  in 
the  usual  form. 

Costs  and  disbursements. 

Costs  and  disbursements  are  to  be  allowed  to  either 
party,  upon  the  like  principles  and  rules  as  in  actions  at 
law  arising  on  contract,  and  must  be  included  in  the 
judgment.^ 

On  judgment  being  rendered  against  the  owner,  and  in 
favor  of  any  laborer,  or  person  furnishing  materials,  and 
the  owner  has  funds  in  his  possession  due  to  the  con- 
tractor, the  costs  of  the  proceeding  are  to  be  deducted 
from  such  funds,  unless  otherwise  directed  by  the  court 
in  which  the  action  is  brought.* 

Ajypeals. 

Appeals  from  judgments  in  this  proceeding  are  had  and 
conducted  in  the  same  manner,  and  within  the  like  time, 
as  in  appeals  taken  in  actions  for  the  recovery  of  money 
arising  on  contract.^ 

Note.  For  further  information  upon  the  subject  of  the  practice  under  the  Me- 
chanics' Lien  Law,  reference  is  made  to  Nott's  Lien  Law,  and  Crary's  Special 
Proceedings.  This  work  is  confined  to  a  very  brief  statement  of  the  practice  there- 
under, deemed,  however,  to  be  sufiScient  for  the  general  practitioner. 


MN.  Y.  S.  atL.,  676,  §  11. 
'  See  4  Abb.,  205,  208,  note. 
=•  4  N.  Y.  S.  at  L.,  677,  §  16. 


*  Idem,  §  15. 

"  Idem,  678,  §  21;  Code,  §§  323,  348. 


PKOCEEDENGS  m  CASES  OF  IDIOTS,  ETC.  295 


CHAPTER  XX. 

PROCEEDINGS  IN  CASES   OF  IDIOTS,   LUNATICS  AND 
HABITUAL    DRUNKARDS. 

Ji(7'isdiction. 

The  care  and  custody  of  idiots,  lunatics  and  persons  of 
unsound  mind,  and  habitual  drunkards,  and  their  estates, 
was  vested,  by  statute,  in  the  chancellor,  who  was  directed 
to  provide  for  their  safe  keeping,  maintenance,  and  for  the 
maintenance  of  their  families,  and  the  education  of  their 
children,  out  of  their  personal  estates,  and  the  rents  and 
profits  of  their  real  estates.^ 

In  cases  where  the  property  of  habitual  drunkards  did 
not  amount  to  two  hundred  and  fifty  dollars,  the  court  of 
common  pleas  had  concurrent  jurisdiction  with  the  chan- 
cellor.^ The  powers  and  duties  or  the  chancellor  are  now 
vested  in  the  supreme  court.^  County  courts,  also,  have 
jurisdiction  respecting  the  care  and  custody  of  the  per- 
sons and  estates  of  idiots,  lunatics  and  habitual  drunkards 
residing  within  the  county."*  The  overseers  of  the  poor 
may  institute  proceedings  in  the  county  court,  where  the 
drunkard's  property  does  not  exceed  two  hundred  and 
fifty  dollars.^ 

The  court  of  common  pleas  of  the  city  and  county  of 
New  York  has  the  same  jurisdiction  in  these  cases  as  the 
county  courts  in  their  counties.*^  The  superior  court  of 
the  city  of  Buffalo  has  concurrent  jurisdiction  in  these 
cases  with  the  supreme  court,  where  the  parties  reside  in 
the  city  of  Buffalo.'  In  order  to  confer  jurisdiction,  the 
person  must  reside  or  have  property,  within  the  jurisdic- 
tion of  the  court.^  A  committee  appointed  abroad  has  no 
power  over  property  here,  nor  can  such  committee  be 
authorized  to  sell  the  property  of  their  cestui  que  trust 


'  1  R.  S.,  147,  §  1 ;  L.  1821,  99,  §  1.  '  2  R.  S.,  52. 

"2  R.  S.,  53,  §  3.  'L.  1854,  464. 

«  L.  1847,  ch.  280.  '  Idem,  225,  §  11. 

•  Code,  §  30,  sub.  8  and  11;  16  How.  »  2  Barb.  Ch.,  305. 
Pr.  567. 


296  ADMTNISTEATION  OF   CIVIL  JUSTICE. 

situate  witliiu  this  state.^  In  cases  not  entirely  free  from 
doubt  as  to  jurisdiction,  tlie  proceedings  should  always  be 
instituted  in  the  supreme  court.  The  practice  and  pro- 
ceedings are  the  same  in  all  courts. 

Who  are  the  persons  contemplated  hj  the  statute.  The 
language  of  the  statute  is :  "  Idiots,  lunatics,  persons  of 
unsound  mind,  and  persons  who  shall  be  incapable  of 
conducting  their  own  atfairs  in  consequence  of  habitual 
drunkenness."^ 

An  idiot  is  a  natural  fool,  or  a  fool  from  birth.  If  a 
person  has  any  reason  whatever  he  is  not  an  idiot.  For- 
merly, persons  born  deaf,  dumb  and  blind  were  regarded 
the  same  as  idiots.  This  doctrine  no  longer  prevails  in 
this  country,  for  one  born  deaf  and  dumb  is  not  of  neces- 
sity an  idiot,  and  the  presumption  is  that  every  person  is 
sane  until  the  contrary  appears.^ 

A  lunatic  is  one  who  has  had  understanding,  but  whose 
reason  has  become  impaired  or  wholly  lost.*  He  may 
have  lucid  intervals ;  but  where  the  lunacy  is  general, 
such  person  is  within  the  operation  of  the  statute.  A 
lunatic  may  have  the  power  of  reasoning  through  imagi- 
nary or  false  principles.  Indeed,  delusion  generally  char- 
acterizes this  condition  of  the  mind.  Dr.  Haslam,  in  his 
work  on  insanity,  says  that  "■false  belief  is,  the  essence  of 
insanity."  This,  perhaps,  is  generally  true ;  but  there  are 
cases  where  belief  does  not  characterize  the  delusion.  To 
use  the  language  of  Stock :  "  The  varieties  of  lunacy  are 
as  numerous  as  the  varieties  of  human  nature,  its  excesses 
commensurate  with  the  force  of  human  passion,  its  phan- 
tasies co-extensive  with  the  range  of  human  intellect." 

Persons  of  unsound  mind.  This  term  not  only  includes 
idiots  and  lunatics,  but  all  persons  who  have  not  a  sound 
and  disposing  memory.  It  is  not  sufiScient  that  a  person 
be  of  weak  understandiug  and  no  resolution  of  mind  ;  but 
the  party  should  be  found  to  be  of  unsound  mind;  noii 
compos  mentis.^  The  defect  of  mind  xaust  be  plain  and 
unequivocal.*^ 

That  kind  of  mind  which  the  law  holds  to  be  sound,  is 
where  a  party  has  understanding  to  dispose  of,  or  mind 
to  manage,  his  estate,  with  judgment  and  discretion; 

'  2  Johns    Ch.,  124;  2  Paige,  lU;    9  *  2  Black.  Com..  304. 

W.,  416.  s  2  Vesey  Sen.,  408  ;  High,  on  Lun.,  5. 

»  2  R.  S.,  53,  §  1.  «  8  St.  Tr.,  322. 
'  4  Johns.  Ch.,  441 ;  2  Park.  Cr.,  28. 


PEOCEEDDfGS  IN  CASES  OF  IDIOTS,  ETC.  297 

and  this  is  to  be  ascertained  from  his  words,  actions  and 
behaviour.^ 

It  is  evident,  from  the  language  of  the  statute,  that 
the  term  unsound  mind  applies  to  a  class  of  persons  not 
included  in  the  words  "idiot"  or  "lunatic,"  otherwise  the 
legislature  would  not  have  added  this  term. 

While  the  courts,  generally,  have  refused  to  appoint  a 
committee,  unless  the  jur}^  found  the  party  to  be  of  ^'un- 
sound mind,''''  this  rule  seems  to  have  been  technical,  and 
has  gradually  been  enlarged.^  The  rule  now  is,  that 
whenever  a  party,  from  any  cause,  becomes  manifestly 
incapable  of  managing  his  affairs,  the  court  has  jurisdic- 
tion, and  will  grant  its  protection  by  issuing  a  commis- 
sion.^ 

In  the  case  of  Baker,^  Chancellor  Kent  directed  a  com- 
mission to  issue,  to  inquire  whether  the  party  was  of 
^^  unsound  mind,''''  or  ^^  mentally  incaimMe  of  managing  his 
affairs^  It  is  evident  that  the  learned  chancellor  under- 
stood the  two  terms  as  meaning  substantially  the  same 
thing. 

The  care  and  custody  of  these  persons,  and  their  estates, 
is  confided  to  the  courts  without  any  restriction  or 
limitation,  and  the  manner  in  which  such  control  is  to  be 
exercised  is  entirely  a  matter  of  discretion.  If  from  the 
finding  of  the  jury  enough  appears  to  enable  the  court  to 
adjudge  the  party  to  be  within  some  one  of  the  classes 
of  persons  over  whom  the  statute  has  given  it  jurisdiction, 
it  is  sufficient.^ 

Hahitual  drunkards. 

Those  referred  to  in  the  statute  are,  "  persons  who  shall 
be  incapable  of  conducting  their  own  affairs  in  consequence 
of  habitual  drunkenness." 

In  these  cases  there  must  not  only  be  imbecility  and 
habitual  drunkenness,  but  the  imbecility  nmst  be  the 
result  of  such  habitual  drunkenness,  and  this  should  be 
alleged  in  the  inquisition,  although  proof  of  incapacity 
need  not  in  all  cases  be  made.  The  fact  that  a  person  is, 
for  2tMy  consideraMe  portion  of  his  time,  intoxicated  to  such 


*  Highmore  on  Lun.,  4;  1  Fen.  Eq,  10.  *  In  the  matter  of  Mason,  per  TIarris, 
«  6  Vesey,   273 ;  8  Id.,   65  ;    2  Jolms.  J.,  1  Barb.,  441 ;  see,  also,  1  Johns. 

Ch.,  233  ;  12  Vesey,  445.  Ch.,  600. 

•  12  Johns.  Ch.,  232. 

n.— 38 


298  ADMINISTRATION  OF   CIVIL  JUSTICE.   • 

a  degree  as  to  deprive  him  of  liis  ordinary  reasoning  facul- 
ties, is  at  least  prima  facie  evidence  of  his  incapacity  to 
manage  and  control  his  property.^ 

An  liaUtual  dranTiard  is  a  person  who,  from  the  exces- 
sive and  frequent  use  of  intoxicating  drink,  has  lost  the 
power  or  will  to  control  his  appetite  for  it.^  The  drunken- 
ness must  become  a  fixed  and  settled  habit,  and  not 
occasional  or  periodical,  and  of  such  a  degree  as  to  render 
the  party  incapable  of  managing  his  own  affairs  by  reason 
thereof. 

Application,  who  may  apply.,  and  how  and  where  made. 

The  practice  is  to  apply  to  the  court  by  petition,  pray- 
ing that  a  commission  in  the  nature  of  a  writ  de  lunatico 
inquirendo  may  issue.  The  application  is  usually  made 
by  a  near  relative  of  the  party.  It  may  be  made  by  a 
creditor  or  tenant  of  the  party  f  or,  by  an  executor  under 
a  will  against  a  legatee  under  the  same  will ;  or,  by  the 
attorney  general  in  behalf  of  the  people ;  or,  bj'  a  trustee 
against  his  cestui  que  trust;  or,  even  a  stranger,  if  the  case 
is  clear.* 

In  respect  to  habitual  drunkards,  the  statute  makes  it 
the  duty  of  the  overseers  of  the  poor  of  the  city  or  town 
in  which  they  reside  to  apply.^  This  does  not  prevent 
others  from  making  the  apjilicatiou,  when  they  apply 
first. 

Applicatio7i,  how  made. 

The  petition  should  state  the  facts  on  which  the  appli- 
cation is  based,  and  show  upon  its  face  that  the  case  is 
within  the  jurisdiction  of  the  court  to  which  the  applica- 
tion is  made.^  The  petition  should  be  verified,  and  be 
accompanied  by  afiidavits,  setting  forth  explicitly  the  con- 
dition of  the  party  proceeded  against,  and  clearly  show 
that  such  party  is  a  proper  subject  for  the  protection  of 
the  court.  It  is  frequently  advisable  to  present  with  the 
petition  the  affidavit  of  one  or  more  respectable  physicians. 
In  all  cases  the  papers  should  show  a  clear  prima  facie 
case. 


*  Walavorth,  Chancellor,  1  Paige,  583.     ■•  1  Russ,  348. 
', Bouvier's  Law  Die.  *  2  R.  S.,  53. 

*  Shelfer  Lun.,  93.  «  2  Barb.  Cli.  R.,  305. 


PEOCEEDINGS  IN  CASES  OF  IDIOTS,  ETC.  299 


Where  made. 

The  application  is  made  by  an  ex  parte  motion,  and 
if  to  tlie  supreme  court,  the  motion  must  be  made  to 
the  court  at  a  special  term.  If  the  application  be  to  the 
county  court,  it  may  be  made  any  time.^  A  proper  case 
being  made,  the  court  will  grant  an  order  directing  that 
a  commission  issue. 

The  usual  number  of  commissioners  is  three,  but  this 
matter  is  discretionary  with  the  court.  The  general  prac- 
tice is  to  nominate,  as  commissioners,  a  counselor-at-law, 
a  physician  and  one  other  intelligent  man. 

The  order  being  entered  in  the  proper  clerk's  office,  a 
commission  must  be  prepared.  The  commission  must 
direct  an  iuquirj^  tfe  to  the  mental  condition  of  the  party 
proceeded  against ;  how  long  he  has  been  in  such  condi- 
tion ;  who  are  his  next  of  kin  and  heirs,  and  the  value  of 
his  real  and  personal  estate,  as  well  as  the  annual  value 
of  the  rents  and  profits  thereof.  The  commission  should 
be  sealed  with  the  seal  of  the  countj',  and  the  due  allow- 
ance thereof  should  be  certified  by  an  indorsement  thereon 
by  the  clerk.^ 

Persons  dealing  with  the  party  proceeded  against  after 
the  issuing  of  the  commission,  with  knowledge  of  this  fact, 
do  so  at  their  peril ;  for  if  a  committee  be  appointed,  they 
may  sustain  an  action  to  set  aside  a  conveyance  made  by 
the  party  proceeded  against  while  the  i3roceedings  are 
pending.^ 

The  court  has  no  jurisdiction  to  appoint  a  committee 
over  an  alleged  lunatic,  or  order  a  sale  of  his  property, 
upon  mere  i^etition,  before  a  commission  has  been  issued 
and  returned.* 

The  return  of  the  commission  is  a  judicial  determination 
that  the  party  proceeded  against  is  one  of  the  class  of  per- 
sons referred  to  in  the  statute. 

Mcecution  of  Che  commission. 

The  execution  of  the  commission  must  be  public.^  Pend- 
ing the  execution  of  the  commission  the  court  will  make 
all  orders  necessary  for  its  i)roper  execution,  such,  as  an 


'  Code,  §  31.  *  Matter  of  Payn,  8  How.,  220. 

"  2  Barb.  Ch.,  229.  »  Coll.  on  Luu.,  131. 

'  15  Barb.,  1520. 


300  ADMIN^ISTKATION  OF   CIVIL  JUSTICE. 

order  for  the  production  of  the  alleged  lunatic,  where  the 
party  who  has  custody  of  him,  refuses  to  produce  him 
before  the  commission,^  or  restraining  his  removal  out  of 
the  county,  or  improper  interference  with  his  person  or 
property.^  In  all  these  cases  sufficient  grounds  must  be 
shown  for  these  summary  proceedings.    . 

A  certified  copy  of  the  order,  together  with  the  commis- 
sion, should  be  left  with  the  commissioners.  They  may 
then  issue  a  precept  directed  to  the  sheriff  of  the  county 
in  which  the  commission  is  to  be  executed,  to  summon  a 
jury,  at  a  time  and  place  named  therein.  The  usual  prac- 
tice is  to  name  in  the  order  the  place  for  executing  the 
commission,  and  the  precept  should  conform  to  the  order. 

If  the  party  proceeded  against  reside  within  the  juris- 
diction of  the  court,  the  practice  is,  in 'the  order  to  direct 
that  the  commission  be  executed  at  or  near  his  place 
of  residence.^  The  convenience  of  witnesses  may  be 
consulted.* 

The  sheriff,  on  receipt  of  the  precept,  should  summon 
not  less  than  twelve,  nor  more  than  twenty-four,  jurors, 
whose  names  he  should  annex  to  the  precept.  It  is  the 
duty  of  the  sheriff  to  select  the  jurors,  and  the  commis- 
sioners have  no  right  to  interfere  with  him  in  the  discharge 
of  this  duty.^ 

The  manner  of  executing  the  precept  is  the  same  as  in 
other  cases.  The  service  must  be  x^ersonal,  and  should 
be  a  reasonable  time  before  the  day  appointed  for  the 
hearing.  The  commissioners  may  require  the  sheriff  to  be 
present  at  the  time  of  the  hearing,  to  attend  upon  the 
jury,  but  it  will  be  irregular  if  he  is  present  with  them 
when  they  deliberate  upon  their  verdict ;  and  where  the 
sheriff  improperly  interferes  with  the  deliberations  of  a 
jury,  their  inquisition  will  be  set  aside.^ 

Notice  of  executing  commission.  ]S^otice  of  the  time  and 
place  of  executing  the  commission  must  be  given  to  the 
party  proceeded  against,  and  he  has  a  right  to  be  present ; 
and  this  notice  may  be  required,  although  the  party  does 
not  reside  in  the  state.  If  peculiar  circumstances  render 
it  improper  or  unsafe  to  give  such  notice,  they  should  be 
stated  in  the  petition  to  the  court,  so  that  a  special  provi- 
sion may  be  inserted  in  the  commission,  dispensing  with 


'  Idem,  143.  *  Shelf,  on  Lun.,  96. 

'  Shelf,  on  Lim.,  100.  »  6  Pai^e,  11. 

»  2  VeaeySen.,  401 ;  19  Vesey  Jr.,  340.    «  2  Hoff.  Ch.  Pr.,  255  ;  1  Paige,  49T. 


PROCEEDINGS  DT  CASES  OF  IDIOTS,  ETC.  301 

notice  to  the  party .^    Due  proof  of  the  service  of  this 
notice  should  he  made. 

The  duty,  power,  <fcc.,  of  the  commissioners. 

The  commissioners  j^ro  Iuig  vice  are  a  qxiasi  court  with 
many  of  its  powers  and  duties.  There  is  no  statute  requir- 
ing them  to  be  sworn.  They  may  summon  witnesses  and 
should  issue  a  subpoena  to  compel  their  attendance.  Should 
the  witnesses  fail  to  attend,  the  court,  upon  the  facts  beiug 
shown,  will  make  an  order  compelling  their  attendance 
and  will  jjunish  them  for  their  disobedience.^  There  must 
be  at  least  twelve  jurors,  who  must  be  sworn,  when  the 
commissioners  should  read  the  commission  to  them  and 
inform  them  of  their  powers  and  duties  severally.  They 
also  must  administer  the  oath  to  each  witness  before  he  is 
examined.  After  the  testimony  is  closed,  one  of  the  com- 
missioners will  charge  the  jury  as  to  the  law  and  may 
recapitulate  the  testimony.  The  jury  are  also  to  be  in- 
structed that  twelve  or  more  of  their  number  must  agree 
to  make  a  verdict,  and  that  if  they  do  not  thus  agree,  they 
report  the  fact  to  the  commissioners.^ 

It  is  always  Avell  to  instruct  the  jury  fully  as  to  the 
extent  of  the  inquiries  required  by  the  commission  and 
the  precise  issue  in  the  case,  and  the  form  of  the  inquisition 
in  case  they  find  against  the  party. 

The  inquisition. 

On  retiring  for  deliberation,  the  jury  are  furnished  with 
a  blank  form  of  inquisition,  in  which  they  shall  insert  a 
response  to  each  question  directed  by  the  commission  to 
be  found.  If  the  jury  find  against  the  party  proceeded 
against,  they  will  fill  up  and  sign  the  inquisition  and 
deliver  the  same  to  the  commissioners,  who  will  annex  it 
to  the  commission,  sign,  seal  and  deliv^er  it  to  the  attorney 
conducting  the  proceedings,  that  he  may  present  the  ijro- 
ceedings  to  the  court. 

The  finding  in  the  inquisition  should  be  in  the  technical 
language  of  the  statute  ;  but  this  is  not  absolutely  essen- 
tial.* 

The  usual  practice  is  to  file  the  inquisition  with  the  clerk 

'  1  Paige,  580  ^  In  the  matter  of  Arnliout  1  Paige,  499. 

«  Shelf,  on  Lun.,  103;  6  Yq?j,  784.  ■*  1  Barb.  S.  C.  R.,  437. 


302  ADMmiSTEATION  OF  CIVIL  JUSTICE. 

and  to  give  notice  thereof,  with  a  notice  of  a  motion  to  all 
parties  appearing,  for  a  confirmation  of  the  inquisition. 

A  motion  may  also  be  made  at  the  same  time  and  place 
for  an  order  appointing  a  committee.  This  motion  is  based 
npou  a  petition  setting  forth  all  the  proceedings  had  in 
the  matter,  with  a  prayer  for  the  appointment  of  a  com- 
mittee. 

The  petition  should  be  verified.  Notice  of  this  motion 
must  be  given  to  all  the  heirs-at-law  and  next  of  kin  of 
the  party  proceeded  against,  that  they  may  propose  them- 
selves as  committee.^ 

Selection  and  appointment  of  committee. 

The  matter  of  the  appointment  of  a  committee  lies,  to  a 
great  extent,  in  the  discretion  of  the  court.  The  court 
will  appoint  as  committee  that  person,  who,  under  all  the 
circumstances,  is  most  suitable  to  have  the  care  and  cus- 
tody of  the  person  and  estate  of  the  party,  and  who  is 
willing  to  take  upon  himself  the  performance  of  the  trust, 
and  give  the  recpiisite  security. 

The  chief  objects  sought  in  the  selection  of  a  committee 
are  the  comfort  and  welfare  of  the  lunatic,  and  the  i)rofita- 
ble  management  of  his  estate.^ 

In  determining  the  suitableness  of  a  party  to  act  as 
committee,  the  court  will  consult  the  wishes  of  the  lunatic 
as  far  as  possible.^  The  heirs-at-law  and  next  of  kin  are 
presumptively  entitled  to  act  as  committee ;  but  they 
must  be  suitable  persons,  and  give  the  requisite  security, 
or  the  court  will  not  ap[)oint  them.^  All  other  things 
being  equal,  near  relatives  and  persons  connected  with  the 
family  should  be  appointed  the  committee.^ 

The  care  of  married  persons,  if  lunatic,  is  usually  given 
to  their  spouses.^  If  the  lunatic  is  a  female,  it  is  usual  to 
appoint  a  female  the  committee.'^  In  the  case  of  a  lunatic 
mother,  her  daughter  was  appointed  committee.^ 

It  is  discretionary  with  the  court  to  order  a  reference,  or 
not,  on  the  appointment  of  a  committee.  If  the  property 
is  small,  and  the  evidence  clear  as  to  the  qualifications,  and 


"  n  Abb.  Pr.,  274.  »  The  matter  of  ffussey,  1  Mallory,  226; 

']  Black.  Com.,  305.  6  B.  Mon..  239;  Jacob's  R.,  405. 

'  2  P.  Wms.,  635;   2  Ca.  Ch.,  239.  •  1  P.  Wins.,  101. 

*  2  Russ.,  450.  '  2  Id.,  635. 

'  1  Johns.  Ch.,  436. 


PROCEEDINGS  rsr  CASES  OF  IDIOTS,  ETC.  303 

the  next  of  kin  join  in  the  petition,  it  will  appoint  a  com- 
mittee without  a  reference.^ 

If  the  aijpointment  of  the  persons  proposed  as  commit- 
tee be  contested,  or  there  be  doubts  as  to  the  suitableness 
of  the  persons  named  as  such,  the  court  will  refer  the 
matter  to  a  referee,  to  inquire  and  rejjort  who  is  a  suit- 
able and  proper  person  to  be  appointed  the  committee ; 
and  in  such  cases  it  is  usual,  also,  to  insert  in  the  order 
a  provision  requiring  the  referee  to  approve  of  the  bond, 
in  the  sum  named  by  the  court,  and  the  sureties  offered  by 
him.  In  cases  where  there  is  much  property,  it  is  well  for 
the  order  to  require  the  officer  to  report  a  proper  allowance 
for  the  support  of  the  lunatic. 

The  order  of  reference  is  executed  by  taking  testimony 
in  the  usual  way.  ISTotice  of  the  time  and  place  must  be 
given  to  the  heirs  and  next  of  kin  of  the  lunatic,  and  such 
other  parties  as  have  appeared  in  the  proceedings,  or  the 
court  has  seen  proper  to  name  in  the  order.  The  referee 
must  report  the  facts  found  by  him,  and  his  opinion 
thereon,  and  his  report  must  be  tiled  with  the  clerk  of  the 
court,  whose  duty  it  is  to  note  the  day  of  filing,  and  enter 
the  same  in  the  proper  book.  Notice  of  the  tiling  should 
at  once  be  given,  and  unless  exceptions  thereto  are  tiled 
within  eight  days  from  the  service  of  such  notice,  the 
report  becomes  absolute  and  stands  confirmed.^  If  excep- 
tions are  filed  and  served  within  such  time,  the  matter  may 
be  brought  to  a  hearing  upon  a  case  to  be  made  at  any 
special  term  thereafter,  on  the  notice  of  any  party  inter- 
ested.^ The  party  objecting  to  the  report  must,  in  his 
exceptions,  point  out  the  errors  comj^lained  of,  otherwise 
the  part  not  excepted  to  will  be  taken  as  admitted.^ 

The  court  will  not  be  entirely  governed  by  the  referee's 
report,  but  may  direct  him  to  review  it,  or  may  act  inde- 
pendently of  it.*  The  court  may  appoint  two  committees, 
one  for  the  i)erson  and  one  for  the  estate.  In  short,  the 
court  has  the  power,  and  will  make  any  order  necessary  to 
secure  the  i)ro[)er  care  and  attention  to  the  person  of  the 
lunatic,  and  the  best  management  of  his  estate.^ 


"  1  Russ.  &  M.,  112.  *  1  Coll.,  198. 

"  Supreme  Court,  Rule  32.  *  Shelf,  on  Lun.,  143. 

*  6  Johns., -566. 


304  ADMINISTEATION  OF   CIYIL  JUSTICE. 


Of  the  effects  of  the  finding  of  an  inquisition. 

The  finding  of  an  inquisition  is  conclusive  evidence  of 
incapacity;  and  all  contracts,  gifts  and  devises,  to  take 
effect  during  their  lifetime,  made  by  idiots,  lunatics,  per- 
sons of  unsound  mind  or  habitual  drunkards,  after  the 
actual  finding  of  an  inquisition,  without  permission  of 
the  court,  and  while  the  inquisition  is  in  force,  are  abso- 
lutely void.^ 

Acts  done  before  the  issuing  the  commission  and  the 
finding  of  the  inquisition,  which  are  over-reached  by  the 
inquisition,  are  prima  facie  void.^ 

But  the  fact  that  a  party  is  under  a  committee  does  not 
disqualify  him  from  making  a  will.  He  can  make  a  will  if 
he  has  the  requisite  mental  capacity,  and  this  he  maj"  do 
without  the  suspension  of  the  commission  or  leave  of  the 
court. 

Where  a  party  is  under  commission,  he  is  prima  facie 
incompetent ;  and  to  establish  such  a  will,  the  proi)onent 
must,  in  addition  to  the  statutory  requirements,  give  suffi- 
cient evidence  to  remove  the  presumption  of  continued 
incapacity  arising  from  an  unrevoked  commission.^ 

An  inquisition  is  analogous  to  a  proceeding  in  rem,  and 
is  conclusive  on  every  person  dealing  with  the  party  against 
whom  an  inquisition  has  been  found,*  upon  the  principle 
that  it  is  the  duty  of  every  person  to  ascertain  whether 
those  with  whom  he  deals  have  the  capacity  to  contract. 

Waiver  of  a  notice  of  protest  by  an  habitual  drunkard, 
after  inquisition  found,  even  when  sober,  was  held  void.^ 
The  fact  of  his  being  sober  is  immaterial.  The  inquisition 
is  conclusive,  and  to  go  behind  it  would  open  the  door  to 
endless  litigation  and  etfectually  defeat  the  object  of  the 
trust.  The  person,  or  property  of  one  against  whom  an 
inquisition  has  been  found,  is  m  the  care  and  custody  of 
the  court ;  and  it  is  an  irregularity,  as  well  as  a  contempt 
of  court,  to  proceed  against  either  without  first  obtaining 
leave  of  court.^ 

The  court,  on  application  of  the  committee,  will  restrain 
all  suits  and  proceedings  against  a  party  under  an  iuquisi- 


2  Paige,  422,  Beverhfs  case  ;  4  Coke's     '  14  Pick.,  284  ;  18  Id,  116;  12  Mass., 
R.,  126,  b;  4  Scld,  388.  488;   8  N.  Y.,  396. 

»  4  How.  Pr.,  34;  2  Barb.  Ch.  R.,  208 ;     *  4  Seld.,  393. 
2  Paige,  422.  "  4  Id.,  388. 

«  3  Paige,  199;  5  Id.,  489 


k 


PKOCEEDINGS  IN  CASES  OF  IDIOTS,  ETC.  305 

tion  commenced  without  its  leave.^  The  proper  and  only- 
safe  remedy  of  a  creditor  of  a  lunatic,  after  inquisition 
found,  is  to  petition  the  court,  appointing  the  committee, 
for  relief,  or  for  leave  to  bring  an  action,  or,  if  the  claim  be 
disputed,  for  a  reference  to  establish  it.^  But  a  judgment 
recovered  against  a  lunatic  after  the  appointment  of  a 
committee,  is  not  void,  or  even  erroneous ;  and  the  court 
will  not  interfere  with  it  unless  some  Iraud  has  been  prac- 
ticed, or  the  lunatic  has  a  good  defense  to  the  action.^  K 
the  judgment  is  inequitable,  or  without  any  beneficial  con- 
sideration, or  has  been  fraudulently  obtained,  the  court 
will  grant  relief.^ 

Of  the  alloioance  for  support^  &q. 

In  ordinary  cases,  the  court  leaves  the  amount  to  be 
expended  for  the  support  of  the  lunatic  and  those  mem- 
bers of  his  family  for  whom  he  is  bound  by  law  to  provide, 
to  the  discretion  of  the  committee.  In  the  execution  of 
this  trust,  the  committee  should  deal  with  its  ward  in  a 
generous  manner.  The  interest  of  the  lunatic,  «&c.,  is  the 
primary  consideration  of  the  law.  The  amount  to  be 
expended  by  the  committee  should  be  determined  by  the 
estate,  rank,  family  and  former  style  of  living  of  the  luna- 
tic, &c. 

When  the  estate  is  of  any  considerable  amount,  the 
better  practice  is  for  the  court  to  fix  the  amount  of  annual 
allowance  for  support.  This  should  be  done  on  the  report 
of  a  referee ;  and  the  order  which  refers  the  matter  to  a 
referee  to  appoint  a  committee,  may  contain  a  provision 
that  he  report  a  i^roper  amount  of  annual  allowance  for 
the  lunatic  and  those  whom  he  is  bound  by  law  to  support, 
and  the  committee  may  petition  the  court  for  such  an  order 
at  any  time. 

In  determining  the  amount  of  allowance  for  support, 
the  court  will  be  governed  solely  by  the  amount  of  the 
estate  and  the  comfort  of  the  lunatic  himself  without 
regard  to  next  of  kin  or  expectants.^  This  doctrine  has 
been  carried  so  far  as  to  invest  the  whole  estate  of  a  luna- 
tic in  a  government  annuity  for  his  life.'"'  The  allowance 
should  be  changed  as  circumstances  warrant  or  require. 

*  3  Paige,  199 ;  2  Johns.  Ch.,  242.  *  1  Vesej  Jr.,  296;  6  Vesey  Jr.,  8;   3 
"  5  How.  Pr.,  109;  5  Paige,  489.  Johns.  Ch.,  347. 

^  13  Barb.,  424.  *  Eix  park  Stanard,  18  Vesej,  285. 

♦  2  Paige,  422. 

II.— 39 


306  ADMmiSTEATIOX   OF   CIVIL  JUSTICE. 

It  slioiikl  be  increased  as  the  estate  of  the  lunatic  increases.' 
In  one  case  the  allowance  was  increased  in  consideration 
of  the  intended  marriage  of  a  daughter  of  the  lunatic  and 
a  portion  of  the  allowance  was  settled  to  her  separate  use. 
In  the  same  case,  a  sum  of  money  was  directed  to  be  paid 
her,  out  of  her  father's  estate,  by  way  of  outfit,  on  her 
marriage.^ 

The  principle  which  seems  to  govern  these  cases,  where 
the  estate  is  ample,  is  the  consideration  of  what  the  luna- 
tic himself  would  probably  have  done  under  the  circum- 
stances, had  he  been  sane." 

Acting  on  this  principle,  when  the  estate  is  large  and 
the  income  much  more  than  sufficient  to  support  the  luna- 
tic, the  court  will,  almost  as  a  matter  of  course,  make  an 
allowance  out  of  the  estate  or  income  of  the  lunatic  by 
way  of  advance  to  the  children  or  other  descendants  of 
the  lunatic,  who  would  be  entitled  to  his  estate  in  case 
of  his  death.  If  the  children  are  adult  and  competent  to 
support  themselves,  the  court  will  require  them  to  stipu- 
late that  the  amounts  advanced  to  them  respectively  be 
brought  into  hotch  pot  upon  the  death  of  the  lunatic* 
This  principle  has  been  carried  much  farther  than  to  make 
allowances  to  children.  Grandchildren,  natural  children, 
brothers  and  other  collateral  kindred,  have  had  allowances 
made  them  out  of  the  estates  of  lunatics.^  A  retiring 
pension  was  allowed  out  of  the  estate  of  a  lunatic  to  an 
old  personal  servant.*^  These  cases  are  not  based  on  the 
relationship  of  the  parties  to  the  lunatic,  or  that  they  have 
a  right  to  an  allowance,  but  on  the  principle  that  the  court 
will  not  refuse  to  do  for  the  benefit  of  the  lunatic,  that 
which  it  is  probable  the  lunatic  himself  would  have  done 
if  sane." 

Of  actions  by  and  against  lunatics^  Sc. 

At  common  law,  before  a  committee  had  been  appointed, 
the  lunatic  was  defended  by  a  guardian  ad  litemJ  The 
same  practice  prevails  under  the  Oode.^  The  party  may 
procure  the  appointment  of  a  committee  before  or  after 
the  suit  has  been  commenced  against  the  lunatic.     But 


'  1  Vesey,  Jr.,  296.  «  Craig  &  Phil.  Ch.  R.,  76. 

'  1  Myl  &  Cr.,  627.  '  2  Mer.  Ch.,  101-103. 

2  Meriv.,  99;   11  Paige,  257.  »  Shelf,  on  Lun.,  425;   14  Vesey,  172. 

11  Paige,  259.  »  6  How.,  194. 

Shelf,  on  Lun.,  159;  5  Russ.,  154. 


PROCEEDINGS   IN  CASES   OF   IDIOTS,   ETC.  307 

this  is  expensive,  aud  the  burden  of  it  ought  not  to  be 
imjjosed  upon  a  party  seeking  to  collect  a  just  demand. 
The  friends  of  the  lunatic,  who  are  interested  in  protect- 
ing him  and  his  property,  are  the  proper  parties  to  apply 
for  the  appointment  of  the  committee,  and  not  the  an- 
tagonist party  seeking  to  enforce  the  payment  of  a  just 
claim. 

Should  the  lunacy  of  the  party  be  questioned,  the  court 
will  order  a  reference  to  ascertain  the  fact;  or,  in  its  dis- 
cretion, require  that  an  application  be  made  for  the  appoint- 
ment of  a  committee. 

After  the  appointment  of  a  committee. 

At  common  law  all  suits  were  required  to  be  brought  in 
the  name  of  the  lunatic,  except  a  suit  to  set  aside  an  act 
done  by  the  lunatic,  which  was  overreached  by  the  inqui- 
sition. In  such  cases  the  lunatic  might  be  joined  with  the 
committee,  or  omitted.^ 

Whenever  the  lunatic  sued  in  his  own  name,  the  proper 
practice  was  for  him  to  do  so  by  his  committee.^  By  the 
Act  of  1845,  it  is  provided  that  "committees  of  lunatics 
and  habitual  drunkards,  appointed  by  any  order  or  decree 
of  the  court  of  chancery,  may  sue  in  their  own  names  for 
any  debt,  claim  or  demand  transferred  to  them,  or  to  the 
possession  or  control  of  which  they  are  entitled."^ 

This  is  an  enahling  statute,  and  to  be  construed  strictly. 
Hence  it  cannot  apply  excei)t  to  committees  axjpointed  by 
the  supreme  court.  The  Code  provides  that  every  action 
must  be  brought  in  the  name  of  the  real  party  in  interest, 
except  as  otherwise  provided.  One  of  these  exceptions  is 
in  case  of  "trustees  of  an  express  trust."  It  has  been  held 
that  the  committee  of  a  lunatic  was  the  trustee  of  an 
express  trust,  and,  therefore,  might  maintain  an  action  in 
his  own  name  to  set  aside  the  act  of  his  ward  done  while 
a  lunatic.*  This  was  one  of  these  cases  where,  at  common 
law,  the  committee  might  have  sustained  the  action  in 
his  own  name.  If  it  is  to  be  laid  down  as  a  general  rule 
of  law  that  a  committee  of  a  lunatic,  &o.,  is  the  trustee  of 
an  express  trust,  and  can  in  every  case  bring  an  action  in 
Lis  own  name  alone,  then  the  practice  in  most  cases  would 


'  7  Johns.  Ch.,  139.  *  L.  1845,  ch.  112,  §  2. 

'  3  Barb.  Ch.,  24.  *  14  Barb.,  448. 


308  ADMINISTKATION   OF   CIVIL  JUSTICE. 

be  bad,  aud  the  law  may  well  be  doubted.  The  care  and 
custody  of  the  persons  and  estates  of  these  persons  is  in 
the  court,  and  not  in  the  committee.  The  committee  are 
mere  bailiffs,  acting  under  the  direction  of  the  court.^  The 
committee  have  no  interest  whatever  in  the  estates  of 
their  ward,  and  no  power  whatever  over  them. 

Without  discussing  this  matter  further,  it  is  safe  to  say 
that  in  all  cases  the  better  practice  is  to  bring  the  action 
in  the  name  of  the  lunatic  by  his  committee.  The  lunatic 
may  at  any  time  recover.  The  committee  are  liable  to  be 
removed.  In  actions  affecting  the  title  to  real  property, 
the  record  would  make  a  more  desirable  title  if  the  action 
was  in  the  name  of  the  lunatic,  than  if  brought  by  the 
committee  alone.  In  short,  there  are  many  reasons  why 
it  is  better  to  bring  the  action  in  the  name  of  the  lunatic, 
and  not  one  why  it  should  be  in  the  name  of  his  com- 
mittee alone. 

Of  traversing  the  mqidsition.. 

In  this  state,  the  allowing  a  traverse  of  an  inquisition  is  a 
matter  resting  in  the  sound  discretion  of  the  court.^  The 
application  is  made  by  petition  to  the  court,  setting  forth 
all  errors  and  exceptions  to  the  inquisition,  or  alleging  that 
the  party  has  recovered  from  his  disability,  and  praying 
for  leave  to  traverse  the  inquisition,  and  that  an  issue  may 
be  ordered.^ 

The  application  may  be  made  by  the  person  against 
whom  an  inquisition  has  been  found,  or  by  a  member  of 
his  family,  heir  or  next  of  kin,  or  by  any  person  who  has 
made  a  contract  with  the  party,  or  taken  a  conveyance 
from  him,  which  has  been  over-reached  by  the  inquisition, 
or  whose  interests  are  in  any  way  affected  thereby.*  The 
petition  should  be  veritied  and  be  sui)ported  by  affidavit, 
aud  accompanied  by  proof  of  service  of  the  notice  of 
the  apphcatiou.  The  notice  of  application  should  be 
served  on  the  party  applying  for  the  commission,  or  upon 
the  committee,  if  one  has  been  appointed.  If  the  applica- 
tion is  made  by  the  party  proceeded  against,  the  officer 
before  whom  the  petition  is  verified,  should  state  in  the 
jurat  that  he  has  examined  the  petitioner  as  to  the  state 
of  his  mind  ;  that  he  has  read  the  petition,  or  affidavit,  to 

^  Shelf,  on  Lun.,  179,  339;  2  R.  S.,  52;     =6  Johns.  Ch.,  441 
24  Wend.,  85 ;  7  Hill,  97.  *  2  Barb.  Ch.,  235. 

'  1  Paige,  580 ;  20  How.,  385. 


PROCEEDmGS  IN  CASES  OF  IDIOTS,  ETC.  309 

the  petitioner,  and  explained  its  contents  and  its  objects, 
and  that  he  was  apparently  of  sound  mind  and  capable 
of  understanding  the  nature  and  contents  of  the  petition 
or  aflSdavit.  In  cases  of  persons  of  unsound  mind,  the 
court  will  not  grant  the  application  without  a  private 
examination  of  the  party,  or  on  the  report  of  a  referee, 
who  has  made  such  examination.^  If  the  court  grants 
the  application,  it  will  order  the  issue  to  be  made  uj)  and 
tried  in  such  manner,  and  at  such  place,  as  may  seem  best 
and  most  expedient.^  The  issues  being  settled,  the  case 
is  proceeded  with  the  same  as  other  actions. 

Costs  of  the  traverse. 

The  matter  of  costs  in  these  cases  is  entirely  in  the  dis- 
cretion of  the  court.  The  court,  in  a  proper  case,  will 
make  an  order  that  the  committee  pay  the  petitioner's 
counsel  a  certain  sum  to  defray  the  necessary  expenses  of 
the  traverse.^  If  the  estate  is  small  and  needed  for  the 
support  of  the  petitioner's  family,  and  there  is  probability 
that  the  inquisition  will  be  sustained,  the  court  will  not 
suffer  the  estate  to  be  spent  in  litigation,  but  order  the 
traverse  to  be  at  the  petitioner's  expense,  and  not  a  charge 
against  his  estate.* 

If  the  traverse  be  allowed  after  the  appointment  of  a 
committee,  the  court  will  allow  the  committee  their  costs 
and  expenses  of  opposing  the  traverse,  including  counsel 
fee,  on  the  ground  that  it  was  their  jjlaiu  duty  to  oppose 
the  traverse.^  In  the  case  of  an  unsuccessful  traverse  by 
a  party  who  seeks  to  set  aside  the  inquisition  for  his  own 
advantage,  the  court  will  charge  him  with  costs.*^ 

The  bond  by  comndttee  and  sureties. 

The  court  will  never  dispense  with  a  bond,  unless  the 
referee  report  that  no  person  can  be  found  who  will  give 
security.  The  bond  may  be  made  to  the  people  or  the 
clerk  with  whom  it  is  filed.'  The  better  j)ractice  is  to 
make  the  bond  to  the  i)eople.  The  people  are  "trustees 
of  an  express  trust,"  within  section  11^  of  the  Code.^ 

The  bond  should  be  conditioned  for  the  faithful  ])erform- 
ance  of  the  trust  by  the  committee,  and  that  he  will  reuder 


•  5  Paige,  242.  '  20  How.,  385. 

"  1  Johns.  Ch.,  600.  »  4  Johns.  Ch.,  169. 

'  The  matter  of  Lacy,  1  Paige,  583.  ''  1  Barb.  Ch.,  43. 

*  6  Johns.  Ch.,  440.  »  5  Seld.,  176. 


310  ADMINISTKATION  OF  CIVIL  JUSTICE. 

an  account  whenever  required  by  the  court,  and  obey  all 
orders  and  directions  the  court  may  make  in  the  matter. 
The  penal  sum  should  be  double  the  amount  of  the  per- 
sonal estate,  and  three  times  the  amount  of  the  annual 
mcome  of  the  lunatic's  real  estate.^  It  should  be  executed, 
and  proved  or  acknowledged  by  the  committee,  and  his 
sureties,  and  the  sureties  should  justify.  In  addition  to 
this,  the  bond  should  be  approved  by  a  justice  of  the  court, 
or  the  referee,  if  so  ordered,  and  filed  with  the  clerk  where 
the  order  appointing  the  committee  is  entered. 

ThA  power ^  duties^  liability  and  compensation  of  the  cotmnittee. 

The  first  duty  of  the  committee  of  the  person  on  his 
appointment  is,  to  take  possession  of  the  person  over  whom 
he  is  appointed,  and  either  retain  him  in  his  own  custody, 
or  intrust  him  to  the  care  of  such  discreet  person,  as  may 
seem  best  for  the  comfort  and  welfare  of  his  ward.  If  neces- 
sary, the  committee  may  obtain  the  custody  of  the  person 
of  the  ward  by  habeas  corpus,  or  by  an  order  of  the  court.^ 
Mr.  Shelford,  speaking  of  the  committee  of  the  person, 
says :  "  It  is  his  duty  to  administer  all  the  comfort  and 
amusement  which  the  nature  of  the  case  will  admit, 
and  the  funds  of  the  lunatic  afford.'"  He  should  be 
treated  with  great  kindness,  and  all  reasonable  means  of 
restoration  used.  In  one  case  the  court  directed  the 
committee  to  employ  "  a  moral,  discreet,  temperate  and 
intelligent  companion"  for  the  lunatic,  with  power  to  dis- 
charge him  and  employ  another.*  The  court  will  make 
any  order  that  will  tend  to  the  restoration  of  the  lunatic, 
consistent  with  his  means. 

The  committee  are  to  decide,  subject  to  the  control  of 
the  court,  as  to  the  residence  of  the  nan  compos,  or  habitual 
drunkard,  and  the  court  will  aid  and  protect  him  in  the 
proper  exercise  of  such  right.^ 

The  court  will  restrain  all  persons  from  furnishing  an 
habitual  drunkard  with  ardent  spirits,  or  the  means  of 
obtaining  it;  and  if  any  one,  after  notice  of  the  order, 
violate  it,  he  will  be  held  responsible,  not  only  for  con- 
tempt of  court,  but  for  all  damages  done  by  the  party 
while  under  the  influence  of  the  liquor  thus  furnished  him.^ 


'  Shelf,  on  Lun.,  628.  *  17  Barb.   10. 

"  12  Vesey.  Jr.,  445.  "  5  Paige.,'  120. 

'  Shelf,  on  Lun.,  142.  »  3  Id..  200. 


PKOCEEDmGS  IX  CASES  OF  IDIOTS,  ETC.  311 

It  is  the  duty  of  the  committee  to  see  that  his  ward  is  not 
furnished  with  ardent  spirits,  and  that  he  is  kept  away  from 
places  where  it  is  sold,  and  from  all  temptations  that 
would  retard  his  reformation. 

As  to  the  estate. 

The  committee  is  the  mere  bailiff  of  the  court,  and  has 
no  interest  in  the  estate  of  his  ward.^  He  should  take 
possession  of  the  property  of  his  ward,  and  bestow  the 
same  care  and  attention  upon  its  management  as  a  pru- 
dent and  diligent  man  does  on  his  own.  He  cannot  enter 
into  any  contract  respecting  it,  without  the  authority  of 
the  court.^ 

The  court  will  sometimes  sanction  acts  done  by  the  com- 
mittee, without  its  authority,  for  the  benefit  of  the  estate ; 
but  the  only  safe  rule  is,  for  the  committee  to  apply  to  the 
court  for  authority  to  perform  acts  necessary  to  be  done,  or 
for  instructions  as  to  what  should  be  done  in  the  premises.^ 

The  order  appointing  the  committee  is  the  limit  of  its 
authority.  If  he  go  beyond  that,  he  acts  at  his  peril ;  but 
if  he  acts  in  good  faith  and  for  the  good  of  the  estate,  the 
court  will  sanction  his  acts.  As  soon  as  iiracticable,  and 
within  six  months  after  his  appointment,  the  committee 
should  make  and  file  an  iuventorj^  of  the  whole  real  and 
personal  estate  of  his  ward.*  The  inventory  must  be  j-eri- 
fled  by  the  oath  of  the  committee,  taken  before  a  judge 
of  a  court  of  record,  and  be  filed  with  the  clerk  in  whose 
office  the  appointment  of  the  committee  is  entered.  If 
the  committee  neglect  to  make  and  file  an  inventory  as 
above,  the  court  will  comi)el  them,  by  order,  on  the  appli- 
cation of  the  lunatic,  or  his  heirs  or  next  of  kin. 

If  anj  property  belonging  to  the  lunatic,  shall  be  found, 
or  if  he  acquire  any,  after  filing  the  inventory,  it  is  the 
duty  of  the  committee  to  make  and  file  an  inventory  of 
such  property.  The  committee  should  also  tile  an  inven- 
tory and  an  account  of  his  trust  under  oath,  annually,  so 
long  as  he  holds  the  trust  and  has  any  property  in  his 
hands  belonging  to  the  lunatic.  If  he  fail  to  do  this, 
every  ijresumption  will  be  taken  most  strongly  against 
him  in  the  settlement  of  his  accounts.^ 


'  2  Sch.  &  Lef..  437  ;   2  Wil8.,  130.  *  2  R.  S.,  53,  §  9. 

»  Shelf,  on  Luu.,  179.  »  3  Paige,  146  ;  2  Id.,  409. 

» Idem,  204. 


312  ADMINISTKATION  OF   CIYIL  JUSTICE. 

It  is  the  tluty  of  the  committee  to  pay  all  just  debts 
of  their  ward  out  of  the  income,  rents  and  jjrofits  of  his 
estate,  if  these  are  sufficient.  If  this  source  is  not  suffi- 
cient to  pay  the  debts,  they  should  apply  to  court  for  an 
order  to  sell  his  personal  estate,  or  so  much  thereof  as 
may  be  necessary  to  pay  his  debts,  and  if  this  be  not 
sufficient,  or  has  been  all  applied  to  this  purpose,  they 
should  apply  to  the  court  for  an  order  to  lease,  mortgage 
or  sell  his  real  estate. 

Where  the  committee  have  reason  to  doubt  the  justness 
of  a  claim,  they  should  i)etition  the  court  for  a  reference 
to  estabUsh  it  before  paying  it. 

It  is  the  duty  of  the  committee  to  watch  over  the  person 
and  property  of  their  ward  with  a  fatherly  care,  and  inform 
the  court  of  any  undue  interference  with  either,  and  ask 
its  protection  in  case  of  such  interference.  They  should 
petition  the  court  to  restrain  all  actions  and  proceedings 
against  their  ward  commenced  without  their  leave.  It  is 
also  their  duty  to  oppose  an  application  to  traverse  an 
inquisition.^ 

Compensatio7i. 

The  general  rule  is  that  committees  are  allowed  the 
same  commissions  and  compensation  for  their  services  as 
executors,  administrators  and  guardians.^  If  the  estate 
require  the  services  of  a  clerk  to  manage  it  proj^erly,  the 
court  will  allow  the  committee  to  employ  a  clerk,  and  pay 
him  a  reasonable  salary  out  of  the  income  of  the  estate.' 
In  extraordinary  cases,  where  the  estate  is  large,  the 
court  sometimes  allows  the  committee  of  the  person  a 
salary.^ 

Proceedings  to  lease,  mortgage  or  sell  their  real  estate. 

At  common  law  the  court  had  no  power  to  charge  or 
order  the  sale  of  the  real  estate  of  a  non  compos  for  any 
purpose  whatever.  The  utmost  that  could  be  done  was 
to  apply  the  pei^sonal  estate  to  the  payment  of  his  debts, 
and  lease  the  realty  during  the  lunacy.^ 

In  this  state  the  court  has  ample  power  under  the  Ee- 
vised  Statutes  to  sell,  lease  or  mortgage  the  real  estate  of 


»  20  How.,  385.  «  17  Barb,  9. 

«  9  Paige,  440;  2  R.  S.,  93.  '  Shelf,  on  Lun.,  355 ;  8  Yesey,  79. 

»  9  Paige,  440. 


PROCEEDINGS  Eff  CASES  OF  IDIOTS,  ETC.  313 

any  one  of  these  classes  of  persons,  under  certain  circum- 
stances, for  the  payment  of  his  debts,  orfor  the  maintenance 
of  himself  or  family,  or  for  the  education  of  his  children.^ 

The  legislature,  in  1864,  gave  the  siqyreme  court  great 
additional  power  over  the  real  estate  of  lunatics,  and  by 
virtue  of  this  act  it  has  power  to  order  the  leasing,  sale  or 
other  disposition  of  a  lunatic's  real  estate,  or  interest 
therein,  whenever  the  same  is  necessary  and  proper, 
"either  for  the  sui^port  and  maintenance  of  such  lunatic, 
or  for  his  education,  or  that  the  interest  of  such  lunatic 
requires,  or  will  be  substantially  promoted,  by  such  dispo- 
sition, on  account  of  any  part  of  such  property  being 
exposed  to  waste  and  dilapidation ;  or,  on  account  of  its 
being  wholly  unproductive ;  or,  where  the  same  has  been 
contracted  to  be  sold ;  and  a  conveyance  thereof  cannot 
be  made  by  reason  of  such  lunacy,  or  for  any  other  pecu- 
liar reason  or  circumstances."^ 

This  statute  is  broad  enough  to  meet  the  requirements 
of  any  case  that  could  i^ossibly  arise,  where  it  was  desira- 
ble and  expedient  to  make  a  sale  of  a  lunatic's  real  estate. 

It  will  be  observed  that  this  power  is  given  to  the 
supreme  court  alone,  and  applies  solely  to  the  estate  of 
lunatics,  and  not  to  idiots,  persons  of  unsound  mind,  or 
habitual  drunTcards. 

The  proceedings  under  the  Revised  Statutes  will  be  first 
treated  of,  and  then  the  proceedings  under  this  act. 

Proceedings  under  the  Revised  Statutes. 

The  court  has  power,  after  the  appointment  of  a  com- 
mittee, to  order  the  leasing,  mortgaging  or  sale  of  the  real 
estate  of  an  idiot,  lunatic,  person  of  unsound  mind,  or 
habitual  drunkard,  whenever  the  personal  estate  shall  not 
be  sufficient  to  discharge  his  debts,  and  the  same  has  been 
applied  to  that  purpose  as  far  as  the  circumstances  of  the 
case  render  prox)er.^  Also,  where  his  personal  property, 
and  the  rents,  i)rofits  and  income  of  his  real  estate,  shall 
be  insufficient  for  his  maintenance,  or  that  of  his  family, 
or  for  the  education  of  his  children,  the  court  has  power 
to  order  the  mortgaging  or  sale  of  his  real  estate.^ 

This  is  an  enabling  statute,  and  is  to  be  strictly  con- 
strued.   The  statute  should  be  followed  in  all  particulars. 


*L.  1864,  ch.  417.  'Idem,  §16. 

»  2  R.  S.,  §  53. 

XL— 40 


314  ADMrNISTRATION  OF  CIVIL  JUSTICE. 

The  application  must  be  made  by  the  committee,  by  peti- 
tion to  the  court  by  which  they  were  appointed.  The 
petition  must  state  the  particulars  and  amount  of  the 
estate,  real  and  personal,  of  such  idiot,  lunatic,  or  other 
person,  the  application  which  may  have  been  made  of  any 
personal  estate,  and  an  account  of  the  debts  and  demands 
existing  against  such  estate.^  The  application  should  be 
to  the  court  at  a  special  term,  and  not  to  a  judge  at 
chambers. 

If  the  committee  were  appointed  by  a  county  court,  the 
application  may  be  made  at  any  time,  as  that  court  is 
always  open  for  the  transaction  of  business.  The  appli- 
cation may  be  made  ex  parte,  but  the  better  practice  is  to 
give  notice  thereof  to  the  heirs  and  next  of  kin,  and  any 
other  parties  interested  in  the  real  estate  of  the  lunatic. 
The  petition  should  be  verified  by  the  committee. 

The  court,  as  a  matter  of  course,  will  refer  the  matter 
to  a  referee,  who  will,  by  the  order,  be  directed  to  inquire 
into,  and  report  upon,  the  matters  contained  in  the  peti- 
tion, and  examine  into  the  truth  of  the  representations 
made,  and  to  hear  all  parties  interested  in  such  real  estate, 
and  report  thereon  with  all  convenient  dispatch.^  The  refer- 
ence is  required  by  statute,  and  cannot  be  dispensed  with. 
The  order  of  reference  should  require  the  referee,  before 
proceeding  to  execute  the  reference,  to  serve  notice  upon 
all  parties  who  appeared  on  the  application,  or  who  are  inte- 
rested in  the  real  estate  of  the  lunatic,  of  the  time  and  place 
where  he  will  execute  the  reference.  It  would  be  well  to 
specify  in  the  order,  the  names  of  the  parties  to  be  so  served, 
and  the  owner  of  the  real  estate  must  be  one  of  them. 

The  statute  requires  the  referee  "to  hear  all  parties 
interested  in  such  real  estate."  This  certainly  implies 
that  he  shall  notify  them,  including  every  person  having 
any  interest,  vested  or  contingent,  no  matter  how  remote, 
so  that  they  may  have  an  opportunity  to  be  heard. 

The  referee  should  report  the  facts  found  by  him,  with 
his  opinion  thereon,  who  were  notified  by  him  of  the  exe- 
cution of  the  reference,  and  who  appeared  before  him. 
The  report  must  be  filed,  and  notice  of  the  filing  given  to 
such  parties  as  appeared,  and  the  report  will  stand  con- 
firmed unless  exceptions  thereto  are  filed  and  served  within 
eight  days  after  the  service  of  the  notice  of  fifing.^    The 


2  R.  S.,  53,  §  11.  3  Supreme  Court,  Rule  32. 

'  Idem,  §  12.  r  , 


PEOCEEDESTGS  IN  CASES  OF  IDIOTS,  ETC.  315 

exceptions  are  prepared  as  in  otber  similar  cases,  and  must 
be  founded  on  objections  taken  before  the  referee.  The 
exceptions  are  brought  to  argument,  on  notice,  at  special 
term,  and  heard  on  the  report,  exceptions,  and  a  case  con- 
taining the  testimony  taken  before  the  referee.^ 

If,  upon  the  hearing,  and  upon  examination  of  the  mat- 
ter, the  court  is  satisHed  that  the  case  is  one  of  those  jjro- 
vided  for  by  the  statute,  it  will  grant  the  requisite  order. 
If  a  sale  be  directed,  the  order  should  contain  such  direc- 
tions, as  to  the  time  and  manner  of  the  sale,  as  seem 
proper,  and  provide  that  no  conveyance  be  executed  until 
the  terms  of  the  sale  have  been  reported  to  the  court,  upon 
the  oath  of  the  committee  and  has  been  confirmed.^  The 
court  may  require  the  committee  to  give  additional  secu- 
rity, and,  if  so,  the  amount  should  be  stated  in  the  order. 

On  confirming  the  sale,  the  court  will,  by  order,  direct 
the  manner  of  disposing  of  the  j)roceeds  as  circumstances 
require  and  render  proper.  The  conveyance  made  by  the 
committee  should  recite  the  authority  of  the  committee, 
and  the  orders  of  the  court  in  the  matter.  The  convey- 
ance is,  by  statute,  as  valid  as  if  made  by  the  party 
himself  when  of  sound  miud.^ 

If  the  sale  is  made  to  pay  debts,  the  committee  should 
advertise  for  debts,  the  same  as  executors,  &c.,  and  in  case 
the  funds  are  insufhcient  to  paj^  all  the  debts,  he  should 
pay  them  pro  rata,  without  any  preference  whatever. 

The  committee,  having  complied  with  all  the  directions 
of  the  court  as  to  making  the  sale,  application  of  proceeds, 
&c.,  should  make  a  final  report  of  their  acts  and  proceed- 
ings, under  oath,  to  which  they  should  annex  the  vouchers 
for  all  payments  made  by  them,  and  ask  the  court  to  make 
an  order  confirming  the  same. 

Ftoceedirigs  under  the  act  o/"  1864, 

This  statute  applies  to  the  property  of  lunatics  only,  and 
the  supreme  court  has  exclusive  jurisdiction  of  the  matter.* 
The  practice  under  this  act  is  substantially  the  same  as 
under  the  Revised  Statutes.  Under  this  statute  the  appli- 
cation is  made  by  the  lunatic,  by  his  committee;  or,  in 
case  the  lunatic  is  a  married  woman,  the  application  may 
be  made  by  her  husband,  as  well  as  the  committee.     The 


>  22  Barb.,  319;  Rule  33,  S.  C.  '  Idem,  §  21. 

»  2  R.  S.,  55.  §  18.  *  L.  1864,  cli.  417,  §  1. 


316  ADMItnSTKATION  OF  CIVIL  JUSTICE. 

party  making  the  application  must  execute  and  file  with 
the  clerk  of  the  court  a  bond  to  the  lunatic,  in  such  penal 
sum,  with  such  sureties,  and  in  such  form,  as  the  court 
shall  direct,  conditioned  for  the  faithful  performance  of  the 
ti'ust,  &c.,  &c.  Under  the  Ee vised  Statutes  it  is  discre- 
tionary with  the  court  to  require  additional  security,  or 
not.  If  the  bond  be  forfeited,  the  court  shall  direct  it  to 
be  prosecuted  for  the  benefit  of  the  party  injured.  The 
principal  change  that  seems  to  be  effected  by  this  statute 
is  the  enlargement  of  the  power  of  the  court,  by  providing 
for  many  cases,  as  has  already  been  shown,  in  which  the 
real  estate  of  a  lunatic  may  be  sold,  where  it  could  not 
have  been  under  former  statutes. 

Removal  of  Committee. 

Committees  may  be  removed  for  malfeasance,  or  mis- 
feasance, in  the  discharge  of  their  duties.  They  must  obey 
all  orders  of  the  court  in  the  matter,  or  they  will  be  liable 
to  removal,  and  to  be  punished  for  contempt. 

The  permanent  change  of  residence  of  the  committee  to 
a  place  out  of  the  jurisdiction  of  the  court,  is  a  sufficient 
cause  for  removal.^  If  a  temporary  removal  only  is  con- 
templated, the  court  may  refer  it  to  a  referee  to  approve 
of  a  proper  person  to  be  entrusted  with  the  care  of  the 
person  and  estate  of  the  ward.^ 

Bankruptcy  in  the  committee  of  the  estate  is  good  cause 
for  removal.^  In  vesting  a  portion  of  the  lunatic's  money 
on  mortgage,  without  order  of  the  court ;  using  a  portion 
for  his  own  advantage  ;  rendering  deficient  accounts,  &c., 
are  good  causes  of  removal.*  Where  a  stranger  was 
appointed  committee,  without  a  reference,  and  without 
notice  to  the  persons  prospectively  interested  in  the  estate, 
the  appointment  was  set  aside.^ 

The  application  to  remove  should  be  made  by  petition, 
charging  explicitly  the  acts  complained  of.  It  should  be 
supported  by  affidavits,  and  made  to  the  coui't  appointing 
the  committee,  and  on  due  notice  to  the  committee.  The 
application  may  be  made  by  any  person  having  a  suffi- 
cient interest  in  the  matter  to  apply  for  a  commission  and 
the  appointment  of   a  committee. .    Should  a   stranger 


»Jac.  R,  94.  *  Idem,  167. 

'  Shelf,  on  Lun.,  170.  *  11  Abb.,  274. 

•Idem,  169. 


PKOCBEDINGS  IS  CASES  OF  IDIOTS,  ETC.  317 

make  the  application,  he  should  make  a  clear  case,  and  it 
should  be  well  supported  by  incontestible  affidavits,  or  the 
court  might  order  him  to  pay  all  the  expenses  of  the  com- 
mittee in  opposing  the  application. 

Setting  aside  the  inquisition. 

The  inquisition  may  be  set  aside  for  irregularity  in  the 
proceedings,  or  want  of  jurisdiction  in  the  court.  The 
application  may  be  made  by  an 3^  jjerson  whose  interests  are 
anywise  affected  by  it. 

The  application  is  made  by  motion  or  petition,  and  if 
made  for  an  irregularity  merely,  it  should  be  made  as  soon 
as  the  party  moving  has  notice  of  the  irregularity  and 
before  the  confirmation  of  the  inquisition.  If  the  inquisi- 
tion be  confirmed,  and  the  lunacy  unquestioned,  the  inqui- 
sition will  not  be  set  aside  for  mere  irregularity.^ 

The  notice  of  application  should  si^ecify  particularly  the 
defects  and  irregularities  comjjlained  of,  and  if  these  do 
not  appear  on  the  face  of  the  proceedings,  the  application 
should  be  supported  by  affidavits,  copies  of  which  should 
be  served,  with  the  notice  of  the  application,  on  the  party 
prosecuting  the  proceedings,  or  his  attorney. 

Suspending  the  inquisition.,  &c. 

It  is  sometimes  desirable  to  suspend  the  operation  of 
the  commission  and  inquisition  to  enable  the  party  under 
it  to  do  a  particular  act.  This  has  been  done  to  enable  the 
party  to  make  a  will  that  might  be  free  from  the  legal  pre- 
sumption of  invalidity.^ 

The  court  has  unlimited  power  in  the  matter,  and  will 
modif}^  or  suspend  the  inquisition  in  such  manner,  and  to 
such  extent,  as  the  condition  of  the  party  under  it  and  the 
circumstances  warrant  and  require.^  The  application  may 
be  made  tx  ]^arU  or  on  notice,  with  or  without  affidavits, 
so  that  the  court  becomes  satisfied  that  the  case  is  a  proper 
one  for  the  exercise  of  this  power. 

The  application  should  be  made  by  the  party  under 
inquisition. 

Superseding  and  discharging  the  comniissio7r. 

If  a  person  under  inquisition  becomes  restored  to  sound 
mind,  or  if  he  be  an  habitual  drunkard  and  becomes  thus 

'  11  Abb.,  274.  '  7  Paige,  312. 

»  2  Barb.  CL,  208 ;  4  How.  Pr.,  34. 


318 


ADMDaSTRATION   OF   CIYEL  JUSTICE. 


restored  and  continues  permanently  sober,  his  estate  may- 
be restored  to  him  and  the  commission  suspended.  The 
appHcation  should  be  made  by  the  party  himself,  on  due 
notice  to  his  committee,  by  petition,  setting  forth  the  find- 
in  f  of  the  inquisition,  his  restoration  to  a  sound  mind  and 
understanding,  «&c.,  and  praying  that  the  inquisition  may 
be  superseded,  and  for  the  appointment  of  a  referee  to  take 
and  state  the  account  of  his  committee. 

If  the  party's  disability  was  caused  by  drunkenness,  the 
petition  should  state  facts  constituting  a  permanent  reform- 
ation, such  as  entire  abstinence  from  all  intoxicating 
liquors  for  at  least  one  year  immediately  preceding  the 
application,  as  well  as  competency  to  manage  his  affairs, 
as  it  seems  to  be  necessary  to  establish  this  fact  to  author- 
ize the  court  to  presume  a  permanent  reformation.^  The 
petition  should  be  verified  and  be  supported  by  atfidavits 
of  competent  and  disinterested  persons,  of  the  most  posi- 
tive and  circumstantial  character. 

If  the  restoration  be  from  lunacy,  the  affidavits  of  the 
party's  physician  should  be  i)resented,  or  of  other  medical 
gentlemen  who  are  acquainted  with  the  party  or  have 
examined  him.  The  partj^  should  be  present  at  the  making 
of  the  application  that  the  court  may  inspect  and  converse 
with  him  if  desired. 

The  matter  of  proof  on  superseding  the  commission,  lies 
in  the  sound  discretiou  of  the  court,  and  may  be  done  with 
or  without  a  reference.  If  the  application  is  opposed,  or  if 
serious  doubts  exist  as  to  the  sanity  of  the  petitioner,  the 
court  will  usually  refer  the  matter  to  a  referee  to  examine 
the  party,  take  the  testimony  and  report  the  facts,  with 
his  opinion  thereon,^  or  if  the  court  think  proper,  it  may 
direct  an  issue  to  be  made  up  and  tried  by  a  jury.^ 

In  cases  of  great  doubt  as  to  the  mental  condition  of 
the  petitioner,  it  is  believed  that  the  latter  mode  is  more 
satistactory.  The  statute  declares  that  "  in  case  any  luna- 
tic or  other  such  person  shall  be  restored  to  his  right  mind 
and  become  capable  of  conducting  his  affairs,  his  real  and 
personal  estate  shall  be  restored  to  him."^  This  is  a  mat- 
ter of  right,  and  a  party  should  have  the  right  to  a  verdict 
of  a  jury  in  this  case,  if  he  desired  it,  as  well  as  when  it 
is  taken  from  him. 

The  practice  in  the  reference,  &c.,  in  this  case,  is  the 


'  7  Paige,  312. 

»  3  Johns.  Ch.,  567. 


'  6  Johns.  Ch.,  440. 
*  2  R.  S.,  56,  §  24. 


PROCEEDINGS  BY  AND  AGAINST  INFANTS.  319 

same  as  in  similar  cases  in  these  proceedings  hereinbefore 
treated. 

An  appeal  would  lie  from  an  order  denying  the  applica- 
tion, as  such  an  order  would  affect  a  substantial  right. 


CHAPTER  XXI. 

SPECIAL  PROCEEDINGS   BY  AND   AGAINST  INEANTS. 
The  appointment  of  guardian. 

In  the  eye  of  the  law  an  infant  has  not,  in  general,  the 
capacity  to  manage  his  estate,  &c.,  and,  therefore,  it  be- 
comes a  necessity  that  he  should  have  a  guardian  for  that 
purpose;  and  where  there  is  no  testamentary  guardian, 
and  the  infant  has  personal  property,  a  general  guardian 
must  be  appointed.  This  appointment  may  be  made  by 
the  surrogate,  or  by  the  supreme  court,  in  virtue  of  its 
equity  powers,  derived,  not  from  special  statute,  but  from 
its  succession  to  the  powers  and  authoritj^  of  the  chancel- 
lor, embracing  that  part  of  equity  jurisdiction  extending 
over  minors  and  their  estates.^ 

This  power  of  the  court  as  a  court  of  equity  continues 
over  the  infant  during  the  period  of  his  minority,  and  over 
all  guardians  of  the  infant,  and  is  plenary  for  the  purpose 
of  taking  care  of  the  infant  and  his  estate.  In  the  appoint- 
ment of  guardian,  if  the  minor  is  over  the  age  of  fourteen, 
his  wishes  are  to  be  consulted  in  the  selection.  But  he 
must  select  a  suitable  person,  or  the  court  will  not  appoint 
him;  for  the  court  is  not  bound  to  make  such  appoint- 
ment without  regard  to  the  character  or  competency  of  the 
individual.' 

The  statute,  in  its  provisions  determining  who  shall 
have  the  natural  guardianship  of  infants  in  whom  an 
estate  in  lands  becomes  vested,  has  indicated  the  natural 
order  of  preference,  and  is  the  order  observed  by  a  court 
of  equity  where  the  same  is  practicable.     Thus  the  statute 

'  2  Kent  Com.,  226,  227. 


320  ADMINISTRATION   OF   CIYIL  JUSTICE. 

provides  that  the  giiardiansbip  of  such  infant,  with  the 
rights,  powers  and  duties  of  a  guardian  in  socage  shall 
belong :  1.  To  the  father  of  the  infant ;  2.  There  being 
no  father,  then  to  the  mother  thereof;  3.  There  being  no 
father  or  mother,  then  to  the  nearest  and  oldest  relative 
of  full  age,  not  being  under  any  legal  incapacity;  and  as 
between  relatives  of  the  same  degree  of  consanguinity, 
males  shall  be  preferred.^  And  an  uncle  of  the  father's 
side  has  preference  over  an  uncle  on  the  mother's  side.^ 

The  court,  acting  in  virtue  of  its  equity  jmisdiction  and 
authority,  while  it  will  consider  the  wishes  of  the  infant 
and  those  of  its  near  relatives,  will  be  governed  by  what 
it  considers  to  be  the  true  interest  of  the  infant  in  making 
such  an  appointment.  There  is  no  arbitrary  rule  govern- 
ing the  appointments,  but  the  matter  is  within  the  sound 
discretion  of  the  couit,  to  be  exercised  with  a  view  to  the 
social  relation  and  welfare  of  the  minor.^ 

Proceedings  to  appoint  a  general  guardian. 

K  the  infant  is  of  the  age  of  fourteen  years,  or  upwards, 
he  presents  a  petition  for  the  appointment  of  such  guar- 
dian ;  if  he  be  under  that  age,  some  relative  or  friend  may 
present  such  petition  to  the  court,  which  petition  must 
state  the  age  and  residence  of  the  infant,  and  the  name 
and  residence  of  the  person  proposed  or  nominated  as 
guardian,  and  the  relationship,  if  any,  which  such  person 
bears  to  the  infant,  and  the  nature,  situation  and  value 
of  the  infant's  estate.*  This  petition  is  presented  to  the 
court  at  special  term,  and  ujay  be  ex  parte.  The  petition 
cannot  be  heard  at  chambers,  unless  the  sitting  be  that 
of  special  term. 

Upon  presenting  the  petition,  the  court,  by  inspection 
or  otherwise,  ascertains  the  age  of  the  infant ;  and  if  of 
the  age  of  fourteen  years  or  upwards,  the  court  must 
examine  him  as  to  his  voluntary  nomination  of  a  suitable 
and  proper  person  as  guardian.  The  court  must  also 
ascertain  the  amount  of  the  personal  property,  and  the 
gross  amount  or  value  of  the  rents  and  profits  of  the  real 
estate  of  the  infant  during  his  minority,  and  must  also 

>  1  R.  S.,  718,  §  5;  1  N. Y.  S.  at  L.,  667;  see  31  Barb.,  289;  30  Id.,  635:  1 
Cow.,  38 ;  5  Paige,  41 ;  15  Wend.,  633. 

*  2  Kent's  Com.,  226,  note  e.  *  Rule  63. 

•  1  Brad.,  143. 


PEOCEEDrSGS  BY  AJH)  AGAINST  INTAlfTS.  321 

ascertain  the  sufficiency  of  the  security  offered  by  the 
guardian.^ 

The  usual  method  of  determining  the  facts  set  forth  in 
the  petition  is  by  a  reference  for  that  purpose,  the  order 
for  which,  directs  the  referee  to  inquire  into  the  truth  of 
the  matters  set  forth  in  the  petition,  and,  also,  into  such 
other  matters,  specifying  them,  as,  by  rule,  it  is  necessary 
for  the  court  to  be  informed  of,  to  discharge  its  duty  in  the 
premises. 

When  a  referee  is  appointed  by  the  court  for  such  pur- 
pose, he  proceeds,  as  in  other  cases  of  reference,  to  ascer- 
tain the  facts  involved  in  the  case  as  presented  by  the 
petition,  and  required  to  be  ascertained  by  the  rules  of 
court,  and  reports  thereon  to  the  court.  His  report  con- 
tains a  statement  of  the  facts  found  by  him  in  obedience 
to  the  requirements  of  the  order.  He  should  be  careful  to 
find,  and  specifically  and  definitely  state,  every  fact  neces- 
sary to  be  known  by  the  court,  to  enable  it  to  fully 
discharge  its  duty  in  the  appointment  of  the  general 
guardian. 

The  referee,  unless  ordered  to  do  so,  is  not  required  to 
give  notice  of  his  proceedings  to  the  relatives  of  the  infant. 
He  may  or  may  not  do  so,  in  his  discretion.  His  report 
may  be  filed  according  to  the  provisions  of  the  rule,^  or 
it  may  be  presented  to  the  court  directly.^ 

The  court,  where  there  is  no  sufficient  reason  to  the 
contrary,  will  confirm  the  report,  and  appoint  the  person, 
reported  to  be  suitable  and  proper,  general  guardian. 
Such  appointment  becomes  complete  on  the  entry  of  the 
order,  and  on  executing  and  fifing  the  necessary  security 
required  by  such  order.* 

The  security  to  be  given  by  a  general  guardian  must  be 
a  bond,  in  the  penalty  of  double  the  amount  of  the  per- 
sonal estate  of  his  ward,  and  of  the  gross  amount  or  value 
of  the  rents  and  profits  of  the  real  estate,  during  his 
minority,  together  with  at  least  two  sufficient  sureties, 
each  of  whom  must  be  worth  the  amount  specified  in  the 
penalty  of  the  bond,  over  and  above  all  debts.  Instead 
of  personal  security,  the  guardian  may  give  security  by 
way  of  bond  and  mortgage  on  unincumbered  real  property 
of  the  value  of  the  penalty  of  the  bond.     This  security 


'  Rule  64.  '  2  Van  Sant.  Eq.  Pr.,  302. 

»  Rule  32.  « 15  How.,  583. 

n.— 41 


322  ADMINISTEATION  OF  CIVIL  JUSTICE. 

may  be  varied  in  the  discretion  of  the  court,  where,  from 
the  circumstances,  it  may  be  found  for  the  interest  of  the 
infant ;  and  may  direct  the  principal  of  the  estate,  or  any 
part  thereof,  to  be  invested  in  the  stocks  of  the  state  of 
New  York  or  of  the  United  States,  or  with  the  New  York 
Life  Insurance  and  Trust  Company,  the  United  States 
Trust  Company,  or  on  bond  and  mortgage,  for  the  benefit 
of  the  infant,  and  that  the  interest  or  income  thereof  only 
be  received  by  the  guardian.^ 

The  powers  and  duties  of  the  general  guardian. 

After  his  appointment  is  complete,  and  be  thus  becomes 
vested  with  the  powers  incident  to  his  office,  it  is  his  duty 
to  take  possession  and  care  of  his  ward's  personal  estate, 
which  he  may  dispose  of  without  any  previous  order  of 
the  court.^  But  he  cannot  convert  his  ward's  personalty 
into  realty,  nor  can  he  buy  land  with  his  money  ;  and  if 
he  do  so,  his  ward  will  be  entitled,  when  he  arrives  at  full 
age,  either  to  take  the  land,  or  the  money  with  interest.^ 
The  general  guardian  has  no  further  control  over  the  real 
estate  of  his  ward  than  to  manage  and  improve  it  accord- 
ing to  his  best  skill,  to  receive  the  rents  and  profits  of  the 
same,  and  to  lease  it  during  the  minority  of  his  ward. 
Whatever  act  is  done  hy  the  guardian  without  authority, 
will  not  be  deemed  to  be  done  for  the  ward,  unless  the  act 
is  benjeticial  to  him. 

As  a  trustee  of  his  ward's  personal  estate,  it  is  his  duty 
to  so  administer  the  trust  as  to  make  it  both  secure  and 
productive,  where  that  can  be  done.  Unproductive  per- 
sonal estate  should  be  converted  into  money,  and  that 
should  be  safely  invested  in  such  funds  as  are  ai)proved 
by  the  court.*  In  this  state  such  funds  may  be  invested 
in  the  stocks  of  the  state  of  New  York,  or  of  the  United 
States ;  or,  with  the  New  York  Life  Insurance  and  Trust 
Company,  the  United  States  Trust  Company,  or  on  bond 
and  mortgage.^ 

The  general  rule  applied  to  the  acts  of  guardians  trans- 
acting business  for  their  wards  is,  that  where  the  act  is 
beneficial  to  the  infant  it  will  be  protected.^  He  may  pay 
off"  a  mortgage,  and  the  interest  of  any  other  real  incum- 

'  Rule  65.  *  8  Barb.,  48  ;  2  Wend.,  77. 

M   Jolins.   Ch.,  561;    7   Id.,   154;    10     '  Rule  65. 

Yerg.,  160.  •  18  Vea.,  273. 

'  8  Barb.,  48. 


PKOCEEDINGS  BY  A2sD  AGAINST  INTANTS.  323 

brance.^  But  be  will  not  be  sustained  in  doing  any  act 
which  is  an  injury  to  his  ward. 

To  avoid  personal  liability  in  case  of  loss,  the  guardian 
must  keep  the  funds  of  his  ward  separate  from  his  own, 
and  he  must  not  trade  on  account  of  his  ward's  property 
for  his  own  benefit.^  If  he  do  so,  and  a  loss  occurs,  he 
will  be  accountable  to  his  ward.  The  income  of  the 
infant's  property  must  be  kept  properly  invested.  He  will 
be  allowed  a  reasonable  time  to  make  such  investments, 
after  which  he  will  be  chargeable  with  interest.  Six 
months  was  held  to  be  a  reasonable  time  within  which  to 
make  an  investment,  after  the  money  had  been  received, 
although  such  time  might  be  varied  by  circumstances.^ 

The  guardian  must  provide  for  the  support,  mainte- 
nance and  education  of  his  ward,  according  to  his  condi- 
tion and  estate.  The  amount  suitable  for  such  jjurpose 
will  depend  upon  circumstances.  He  should  not  support 
his  ward  in  idleness,  when  he  is  capable  of  earning 
his  own  living ;  and,  if  he  do  so,  he  is  liable  to  his  ward 
for  the  amount  unnecessarily  expended,  although  he  may 
thus  support  him  while  he  is  being  educated  and  quali- 
fied for  future  usefulness  ;  because,  in  such  case,  the  sum 
thus  expended  would  be  for  necessaries.* 

The  guardian  must  never  draw  from  the  principal  of  the 
ward's  estate,  so  long  as  the  income  is  sufficient  for 
the  purposes  of  support,  maintenance  and  education  ;  and 
whenever  it  becomes  necessary  to  expend  anj^  x^art  of  the 
principal  for  such  purpose,  he  should  first  get  an  order  of 
court  allowing  it. 

The  fact  that  the  infant  has  a  father  living  will  not 
excuse  the  guardian  from  providing  for  the  maintenance 
and  education  of  his  ward,  provided  such  father  is  poor 
and  unable  to  support  him.^ 

It  has  already  been  remarked  that  the  guardian  has  no 
control  over  the  real  estate  of  the  ward  extending  to  the 
incumbering  or  disposing  of  it.  Where  the  ward  has  con- 
tracts for  the  x)nrchase  of  real  estate,  the  guardian  should 
sell  them  and  invest  the  funds  for  the  benefit  of  his  ward, 
rather  than  pay  up  the  amount  due  and  take  deeds  ;  for, 


'  2  Van  Sant.  Eq.  Pr.,  305,  citing  1  Eq.  "  18  Paige,  152  ;  4  Sandf.  Ch.,  617  ;   6 

Abr.,  261  ;  Edw.  on  Referees,  375.  Paige,  136;  6  Johns.,  566. 

'  8  Barb.,  48.  »  22  Barb.,  464. 
'  1  Johns.  Ch.,  509. 


324  ADMIOTSTRATION  OF  CIVIL  JUSTICE. 

as  already  observed,  lie  lias  no  right  to  convert  the  per- 
sonal estate  of  his  ward  into  realty-. ^ 

The  guardian,  as  soon  as  he  takes  uppn  himself  the 
duties  and  responsibilities  of  his  office,  should  proceed  to 
make  out  an  inventoiy  of  his  ward's  personal  estate,  its 
situation,  and  the  manner  of  its  disposition,  and  file  the 
same  in  the  office  of  the  court  appointing  him  guardian. 
This  report  is  required  to  be  filed  within  six  months  after 
his  appointment,  and  is  to  be  made  out  and  filed  annually 
thereafter.^  Any  omission  to  do  this  would  render  him 
liable  for  costs,  should  any  one,  on  behalf  of  the  infant, 
make  an  application  to  compel  him  to  discharge  his  duty.^ 
And  besides,  in  the  settlement  of  his  accounts,  every  pre- 
sumption as  to  the  justness  or  fairness  of  the  same  would 
be  against  him.* 

The  guardian  may  be  called  upon  to  account  at  any 
time  by  the  infant  ward.  This  is  done  on  the  petition  of 
a  next  friend  in  behalf  of  the  infant.  So,  also,  he  may  be 
required  to  give  better  security.^ 

Proceedings  for  the  sale^  mortgage  or  lease  of  infant'' s  real  estate. 

This  proceeding  is  by  petition,  and  has  not  been  affected 
by  the  provisions  of  the  code.  The  supreme  court  has  the 
authority  conferred  by  statute  upon  the  late  court  of  chan- 
cery. This  authority  to  sell,  lease  or  otherwise  dispose  of 
the  real  estate  of  the  infant  rests  upon  the  statute  alone.® 
The  court  of  chancery  has  no  original  jurisdiction  to  direct 
the  sale  of  the  real  estate  of  infants.^  The  Code  has  given 
jurisdiction  to  the  county  court  of  the  county  where  the 
property  of  the  infant  is  situated,  to  order  the  sale,  mort- 
gage, or  other  disposition  of  his  estate.^ 

The  statute  xirovides  that  any  infant  seized  of  any  real 
estate,  or  entitled  to  any  term  for  years  in  any  lands,  may, 
by  his  next  friend  or  by  his  guardian,  apply  to  the  court 
of  chancery — now  the  supreme  court — for  the  sale  or  dis- 
position of  his  property,  in  the  manner  therein  directed.' 
But  the  statute  provides  that  no  real  estate  or  term  for 


'  See  8  Barb.,  48.  «  6  Hill,  416. 

"See  the  old  Chancery  Rule,   154 :  2     '2  Ves'.,  23;  1  Mol.,  525;  Macph.  on 

Van  Sant.  Eq.  Pr.,  307  ;  Edw.  Ref.,           Inf.,  311. 

365,  &c.  "  Code,  g  30,  sub.  6.                                  I 

\  2  Paige,  409.  »  2  R.  S.,  191,  §  170  :  2  N.  T.  S.  at  L., 

*  3  Id,  146.  202,  §  170. 

"  1  Edw.,  8.  " 


PKOCEBDINGS  BY  AITO  AGAINST  INFANTS.  325 

years  shall  be  sold  or  disposed  of  in  any  manner  against 
the  provision  of  any  last  will,  or  of  any  conveyance,  by 
which  such  estate  or  term  was  devised  or  granted  to  such 
infant.^ 

Whenever  such  an  application  is  made,  the  court  is 
required  to  appoint  one  or  more  suitable  i^ersons  guardians 
of  such  infant  in  relation  to  the  proceedings  on  such  ap- 
plication. The  supreme  court,  by  a  rule,  have  further 
provided  that  an  infant,  by  his  general  guardian,  if  he  has 
one,  and,  if  there  is  none,  then  by  his  next  friend,  may 
present  a  petition,  stating  the  age  and  residence  of  the 
infant,  the  situation  and  value  of  his  real  and  personal 
estate,  the  situation,  value  and  annual  income  of  the  real 
estate  proposed  to  be  sold,  and  the  particular  reasons 
which  render  a  sale  of  the  premises  necessary  or  proper, 
and  praying  that  a  guardian  may  be  appointed  to  sell  the 
same.  The  petition  must  also  state  the  name  and  resi- 
dence of  the  x)erson  proposed  as  such  guardian,  the  rela- 
tionship, if  any,  which  he  bears  to  the  infant,  and  the 
security  proposed  to  be  given ;  and  the  petition  must  be 
accompanied  by  affidavits  of  disinterested  persons,  or 
other  proof,  verifying  the  material  facts  and  ckcumstances 
alleged  in  the  petition,  and  the  infant,  being  fourteen 
years  of  age  or  upwards,  must  join  in  the  application.'* 
Where  the  infant  resides  out  of  the  state,  the  signing  of 
the  application  by  himself  may  be  dispensed  with.^  The 
written  consent  of  the  i)erson  proposed  as  guardian  should 
be  indorsed  upon  or  annexed  to  the  j)etition,  and  proof  of 
his  signature  should  be  produced.^  And  where  there  are 
several  infants  interested  in  the  same  premises,  as  tenants 
in  common,  they  should  all  join  in  the  same  petition, 
although  they  have  several  guardians.^  This  application 
is  made  to  the  court  at  special  term,  and  may  not  be  made 
at  chambers  except  when  sitting  as  special  term.^ 

The  appointment  of  special  guardian. 

The  statute  provides  that  on  such  application  the  court 
shall  appoint  one  or  more  suitable  persons  guardians  of 
such  infant,  in  relation  to  the  proceedings  on  such  appli- 


*  Idem,  §  176.  *  2  Van  Sant.  Eq.  Pr.,  318. 

'Rule  66.  'Rule  69. 

'  Edw.  Ref.,  398.  •  21  Barb.,  348;  Code,  §  24. 


326  ADMINISTRATION   OF   CIVIL  JUSTICE. 

cation.^  The  court  have  farther  provided,  by  rule  on  this 
subject,  that  if  it  satisfactorily  appear  that  there  is  reasona- 
ble ground  for  the  application,  an  order  may  be  entered 
appointing  a  guardian  for  the  purposes  of  the  application, 
on  his  executing  and  filing  with  the  clerk  the  requisite 
security,  approved  of,  as  to  its  form  and  manner  of  execu- 
tion, by  a  justice  of  the  supreme  court,  or  a  county  judge, 
signified  by  his  approbation  indorsed  thereon,  and  direct- 
ing a  reference  to  ascertain  the  truth  of  the  facts  stated 
in  the  petition,  and  whether  a  sale  of  the  premises,  or  any 
and  what  part  thereof,  would  be  beneficial  to  the  infant, 
and  the  particular  reasons  therefor ;  and  to  ascertain  the 
value  of  the  property  proposed  to  be  sold,  and  of  each 
separate  lot  or  parcel  thereof,  and  the  terms  and  condi- 
tions on  which  it  should  be  sold ;  and  whether  the  infant 
is  in  absolute  need  of  an 3',  and  what  part,  of  the  proceeds 
of  the  sale  for  his  support  and  maintenance,  over  and 
above  the  income  thereof,  and  his  other  property,  together 
with  what  he  might  earn  by  his  own  exertions.  And  if 
there  is  anj  person  entitled  to  dower  in  the  premises  who 
is  willing  to  join  in  the  sale,  also  to  ascertain  the  value 
of  her  life  estate  in  the  premises,  on  the  principle  of  life 
annuities.^ 

The  statute  further  provides  that  the  guardian  shall 
give  bond  to  the  infant,  to  be  filed  with  the  register  or 
assistant  register  (clerk  of  the  court),  in  such  penaltj^  with 
such  sureties,  and  in  such  form,  as  the  court  shall  direct, 
conditioned  for  the  faithful  performance  of  the  trust 
reposed ;  for  the  paying  over,  investing  and  accounting 
for  all  moneys  that  shall  be  received  by  such  guardians, 
according  to  the  order  of  any  court  having  authority  to 
give  directions  in  the  premises,  and  for  the  observance  of 
the  orders  and  directions  of  the  court  in  relation  to  the 
said  trust.^  And  the  court,  by  rule,*  provide  that  such 
security  shall  be  a  bond,  with  two  sufficient  sureties,  in  a 
penalty  of  double  the  value  of  the  premises,  including  the 
interest  on  such  value  during  the  minority  of  the  infant, 
each  of  which  sureties  must  be  worth  the  penalty  of  the 
bond,  over  and  above  all  debts ;  or,  a  similar  bond  by 
the  guardian  only  secured  by  a  mortgage  on  unincum- 
bered real  estate  of  the  value  of  the  penalty  of  the  bond. 

'  2  R.  S,  194,  §  ni ;  2  N.  T.  S.  at  L.,     »  2  R.  S.,  194.  §  172;  4  J.  C.  R.,  378. 

202.  *  Rule  68. 

*  Rule  67, 


PEOCEEDmOS  BY  AND  AGAINST  INPANTS.  327 

And  where  there  are  several  infants,  and  the  same  sure- 
ties are  on  each  of  the  bonds,  they  should  justify  each  in 
an  amount  equal  to  the  aggregate  penalties  of  their  seve- 
ral bonds  to  the  several  infants.^  The  statutory  requisition 
for  security  is  imperative,  and  cannot  be  dispensed  with 
for  any  cause,^  and  it  must  be  observed  that  the  security, 
as  to  its  form  and  manner  of  execution,  must  be  approved 
of  by  a  justice  of  the  supreme  court  or  a  county  judge, 
signified  by  his  approbation  indorsed  thereon.^ 

The  reference  under  the  rule. 

The  guardian  must  produce  to  the  referee  a  certificate 
of  the  clerk  that  the  requisite  security  has  been  duly 
proved,  or  acknowledged  and  filed  agreeably  to  the  order 
of  the  court ;  which  certificate  must  contain  the  name  of 
the  officer  by  whom  it  was  approved,  thus :  "  That  the 
said  bond  was  approved,  as  to  its  form  and  manner  of 
execution,  by  A.  B.,  a  justice  of  the  supreme  court." 

On  the  presentation  of  this  certificate,  the  referee  is 
authorized  to  proceed  in  the  matter  of  the  reference,  and 
not  before.*  The  referee  proceeds  to  discharge  the  duties 
thus  imposed  upon  him  in  the  same  manner  as  in  other 
cases  of  reference.  In  his  report  he  is  required  to  state 
the  reasons  why,  in  his  opinion,  a  sale  of  the  infant's 
estate  is  necessary  or  proper,  and  all  other  facts  required 
by  the  order  of  reference.  He  does  not  report  the  testi- 
mony taken  by  him,  but  only  the  facts  found,  and  the 
reasons  for  his  opinions,  when  he  reports  a  sale  to  be 
necessary  or  proper.  This  report  is  presented  to  the  court 
at  special  term  for  its  approval. 

The  report  of  the  referee  being  satisfactory,  the  court 
will  make  an  order  authorizing  the  guardian  to  contract 
for  the  sale  or  other  disposition  of  the  property,  requmng 
him  to  report  his  doings  in  the  i^remises  to  the  court, 
which  report  of  the  referee  is  filed  and  ordered  to  be  en- 
tered. Any  contract  which  the  guardian  may  make  for 
the  sale,  &c.,  of  lauds  under  such  order,  must  be  in  writing, 
and  should  be  signed  both  by  himself  and  the  purchaser  ; 
and  the  contract  should  also  state,  that  it  is  made  subject 
to  the  ai)proval  of  the  court. 

The  guardian  will  not  be  authorized  to  execute  any  con- 


'  4  How.,  414.  ^  Rules  6,  67, 

«  1  Edw.  Ch.,  507.  *  Rule  67. 


328  ADMINISTEATION  OF   CIVIL  JUSTICE. 

veyance  of  the  land  until  he  has  made  his  report  of  the 
contract  of  sale,  lease,  &c.,  and  has  obtained  the  approval 
of  the  same  by  the  court.  His  report  of  the  contract  made 
by  him  must  be  upon  oath,^  and  if  the  contract  be  con- 
firmed, a  conveyance  will  then  be  executed  under  the 
direction  of  the  court.  And  all  sales,  leases,  dispositions 
and  conveyances  made  in  good  faith  by  the  guardian,  in 
pursuance  of  such  order,  when  so  confirmed,  become  as 
valid  and  effectual  as  if  made  by  the  infant  when  of  full 
age.^ 

At  the  time  the  court  makes  the  order  approving  the 
doings  of  the  guardian  in  the  contract  of  sale,  lease,  &c., 
it  also  makes  a  further  order  for  the  application  and 
disposition  of  the  proceeds  of  such  property,  and  for  the 
investment  of  the  surplus  belonging  to  the  infant,  who  is 
now  a  ward  of  the  court ;  and  such  further  order  also 
directs  a  return  of  such  investment  and  disposition  to  be 
made  upon  oath,  as  soon  as  may  be,  and  also  that  the 
guardian  render  periodical  accounts. 

Doiver.  If  the  referee  has  reported  that  there  is  a  claim 
for  dower  in  the  premises,  it  must  be  satisfied  after  pay- 
ment of  the  costs  and  expenses  of  the  proceedings.^  The 
provisions  of  the  statute  are,  that  if  the  real  estate  is 
subject  to  dower,  and  the  person  entitled  consents  in  writ- 
ing to  accept  a  gross  sum  in  lieu  of  such  dower,  or  the 
permanent  investment  of  a  reasonable  sum  in  such  man- 
ner as  that  the  interest  thereof  be  made  payable  to  the 
person  entitled  to  said  dower,  during  life,  the  court  may 
direct  the  payment  of  such  sum  in  gross,  or  the  investment 
of  such  sum,  as  shall  be  deemed  reasonable  and  shall  be 
acceptable  to  the  person  entitled  to  such  dower  in  manner 
aforesaid.*  But  before  such  sum  is  paid,  however,  the 
court  must  be  satisfied  that  an  effectual  release  of  dower 
has  been  executed.^ 

If  the  widow  does  not  consent  to  accept  such  gross  sum 
to  be  paid  in  lieu  of  her  dower,  the  referee  reports  the  fact, 
and  reports  further  whether  she  consents  in  writing  to  the 
investment  of  a  reasonable  sum,  as  above  stated ;  and 
the  order  of  the  court,  in  that  respect,  will  be  according 
to  the  facts  reported. 

The  final  report.  The  guardian  after  having  consumated 

•  2  R.  S..  195,  §  177.  « Idem,  §  181. 

»  Idem,  §  178.  =■  Idem,  is  182. 

'2R.  S.,  196. 


PROCEEDINGS  BY  AND  AGAINST  INFANTS.  329 

the  sale,  mortgage,  lease,  &c.,  received  the  money,  exe- 
cuted the  conveyances  and  disposed  of  the  proceeds  accord- 
ing to  the  order  of  the  court,  must  make  his  final  report 
of  all  his  doings  in  the  premises,  annexing  thereto  the 
receipts  taken  for  costs,  widow's  dower,  &c.,  and  file  the 
same  with  the  court ;  and  for  greater  safety,  he  should 
obtain  an  order  of  the  court  confirming  all  such  proceed- 
ings had  by  him  in  the  premises.^ 

According  to  the  former  practice  of  the  court,  the  special 
guardian,  within  six  months  after  the  order  confirming 
the  sale,  must  file  in  the  oflice  where  the  appointment  of 
his  guardianship  is  entered,  a  true  and  just  inventory, 
under  oath,  of  the  whole  real  and  personal  estate  com- 
mitted to  his  care  or  guardianship,  and  of  the  manner  in 
which  any  funds  under  his  care  or  control,  belonging  to  the 
estate,  are  invested,  stating  the  income  and  profits  of 
the  funds  or  estate,  and  the  debts,  credits  and  effects,  so 
far  as  the  same  have  come  to  his  knowledge ;  and  annually 
thereafter  he  is  to  render  an  account,  under  oath,  of  his 
guardianship,  and  of  the  property  belonging  to  his  ward.* 
If  he  fail  to  do  this,  every  presumption  as  to  the  justness 
and  fairness  of  his  accounts,  in  case  of  suit  for  settlement, 
would  be  taken  against  him,^  and  he  will  be  liable  to  the 
costs  and  expenses  of  proceedings  for  settlement,  &c. 

Proceeding  to  obtain  specific  performance  by  an  infant  heir^  of  the 
contract  of  his  ancestor. 

By  statute,  an  infant  heir  may  be  decreed  to  perform, 
specifically,  a  contract  made  by  his  ancestor,  where  the 
court  is  satisfied  that  such  performance  ought  to  be  decreed 
or  compelled.  This  proceeding  is  to  supply  a  defect  in  the 
common  law,  which  furnished  no  remedy  against  an  infant 
in  such  cases  until  he  should  arrive  at  full  age. 

The  proceeding  is  hj  petition,  and  it  may  be  doubted 
whether  the  court  would  be  authorized  to  administer  the 
remedy  in  any  other  form,  as  the  remedy  is  a  statutory 
one  and  should  be  strictly  followed.  The  statute  provides 
that  the  court  of  chancery  shall  have  i)ower  to  decree  and 
compel  a  specific  performance  by  an  infant  heir  or  other 
person,  of  any  bargain,  contract  or  agreement  made  by 
any  party  who  may  die  before  the  i)erformance  thereof,  on 


'  2  Van  Sunt.  Eq.  Pr.,  327,  328.  '  3  Paige,  146. 

»  2  Barb.  Ch.  Pr.  217  ;  Ch.  Rule,  154. 

11—42 


330  ADMINISTEATION  OF  CIVIL  JUSTICE. 

petition  of  the  executors  or  administrators  of  the  estate  of 
the  deceased,  or  of  any  person  or  persons  interested  in 
such  bargain,  &c.,  and  on  hearing  all  parties  concerned, 
and  being  satisfied  that  the  specific  performance  of  such 
bargain,  &c.,  ought  to  be  decreed  or  compelled.^ 

What  court  has  jurisdiction.  The  supreme  court  now 
takes  the  jurisdiction  conferred  upon  the  court  of  chancery, 
and  by  the  Code,  county  courts  also  have  jurisdiction  in. 
these  cases.'^  So  also,  by  the  Laws  of  1854,^  the  court  of 
common  pleas  of  the  city  of  ]N^ew  York ;  and  the  superior 
court  of  the  city  of  Buffalo  has  the  like  jurisdiction  within 
that  city.* 

When  a  specific  performance  will  be  compeUed. 

A  specific  performance  of  an  agreement,  in  such  cases, 
will  be  decreed  between  the  infant  heir,  or  the  personal 
representatives  of  a  deceased  contractor,  and  the  surviving 
party  to  a  contract,  when  such  performance  would  have 
been  decreed  in  an  action  between  the  original  parties,  if 
living,  unless  some  intervening  equities  controlling  the 
case  have  arisen  subsequent  to  the  death  of  the  contrac- 
tor." 

It  is  a  principle  of  equity,  that  the  heirs  of  a  vendor  are 
bound  to  fulfill  his  contracts  to  convey  to  the  extent  of 
the  estate  that  descends  to  them  f  and  by  statute,  the  in- 
fant heir  is  also  bound  to  convey.  But  where  a  title  to  a 
part  fails,  or  the  vendor's  interest  is  less  than  is  provided 
for  in  the  agreement,  the  vendee  may  claim  a  specific  per- 
formance to  the  extent  of  the  ability  of  the  vendor,  with 
an  abatement  or  compensation  for  the  deficiency.' 

The  court  will  exercise  a  judicial  discretion  in  compell- 
ing a  specific  performance  of  an  agreement  in  these  cases. 
If  the  contract  is  by  a  competent  party,  and  in  its  nature 
and  circumstances  unobjectionable,  a  performance  will  be 
decreed  as  a  matter  of  course.*  But  the  court  will  not 
compel  the  infant  to  execute  the  deed  with  personal  cove- 
nants.^ If  the  proceeding  is  by  an  executor  to  compel  a 
purchaser  to  pay  and  take  a  conveyance  from  an  infant 


'  2  R.  S.,  194,  §  169.  •  1  Sugd.  V.  &  P.,  275,  320 ;  9  Paige, 

'  Code,  §  30,  sub.  7.  280 ;  2  Stor.  Eq.  Jr.,  §  788. 

'  L.  1854,  464,  §  6.  '17  Barb.,  165 ;  11  Paige,  277 ;  2  Stor. 

*  L.  1854,  226,  §  9.  Eq.  Jr.,  §  279. 

'  See   17    Barb.,    162,  and   Wilb,    Eq.     '  3  Cow.,  505 ;   17  Barb.,  166. 

Jur.,  269.  »  5  Johns.  Ch.,  261 ;  17  Barb.,  166. 


PROCEEDDfGS  BY  AND  AGAINST  INFANTS.  331 

heir,  the  title  must  be  free  from  doubt,  for  the  court  will  not 
compel  a  j)urchaser  to  take  a  doubtful  title.  If  the  widow 
refuses  to  unite  in  the  conveyance,  leaving  her  dower  estate 
outstanding  in  the  premises,  it  will  be  deemed  a  reason- 
able excuse  why  the  purchaser  should  not  be  compelled  to 
fulfill. 

Bij  ivliom  the  'petition  is  to  he  filed.  The  statute  provides 
that  the  infant  may  be  compelled  specifically  to  perform 
in  such  cases,  on  the  petition  of  the  executors  or  adminis- 
trators of  the  estate  of  the  person  deceased,  or  upon  the 
petition  of  any  person  interested  in  such  bargain,  &c.^ 

Under  the  description  of  "any  person  interested,  &c.," 
an  infant  heir,  by  his  general  guardian,  may  petition  the 
court  to  decree  a  specific  performance  of  a  contract  of 
purchase  by  his  ancestor,  by  authorizing  a  conveyance  to 
be  made  to  the  infant  by  the  vendor,  and  directing  the 
payment,  by  the  general  guardian,  from  the  funds  of 
the  infant,  or  by  mortgaging  back  the  premises,  to  secure 
the  payment  of  the  balance  of  the  purchase-money  due.^ 

AYhen  the  survivor  to  the  contract  is  a  vendee,  and  a 
portion  of  the  purchase-money  remains  due,  the  proi)er 
petitioner  is  the  executor  or  administrator  of  the  deceased  ; 
because  they  are  the  parties  entitled  to  the  proceeds  under 
the  rule,  that  lands  contracted  to  be  sold  are  equitably 
converted  into  personal  projjerty  ;  and  the  survivor  to  the 
contract,  or  his  assignee,  or,  in  case  of  his  death,  his  per- 
sonal representative,  is  a  proper  petitioner  for  the  enforce- 
ment of  the  contract  of  a  deceased  person  against  the 
infant  heir. 

What  the  petition  shoiild  set  forth.  It  should  set  forth  all 
facts  essential  to  show  the  party  entitled  to  proceed  under 
the  provision  of  the  statute.  Thus,  it  should  show  the 
contract  or  agreement  of  the  party  deceased  ;  that  the  same 
remains  unperformed  on  the  j)art  of  such  deceased  party ; 
also,  the  decease  of  such  party  ;  the  relation  of  the  infant 
heir  to  such  party ;  that  the  legal  estate  in  such  premises 
descended  to  such  infant  heir ;  the  readiness  of  the  j^eti- 
tioner  to  perform  such  contract  on  his  part ;  in  short,  the 
petition  should,  in  all  respects,  contain  everything  requisite 
to  show  the  party  entitled  to  the  relief  asked  for,  and 
should  be  verified  by  the  oath  of  the  petitioner,  and  should 
also  be  accompanied  by  the  written  consent  of  the  person 
proposed  to  act  as  special  guardian  of  the  infant  heir. 

'  2  R.  S.,  194,  §  1G9.  *  See  10  Barb.,  432;  3  Johns.  Ch.,  597. 


332  ADMDflSTRATION  OF  CIVIL  JUSTICE. 


The  presentation  of  the  petition  and  the  hearing. 

The  statute  authorizes  tbe  court  to  act  in  the  premises 
"on  hearing  all  parties  concerned ;"  consequeutlj^  all  per- 
sons shown  by  the  petition  to  be  interested  in  the  premises, 
should  be  duly  notified  of  the  time  and  place  of  presenting 
such  petition,  that  they  may  have  an  opportunity  of  being 
heard.  If,  however,  the  petition  should  be  presented  with- 
out serving  such  notice,  the  order  of  reference  would  direct 
the  referee  to  summons  such  parties  before  him  that  they 
might  be  heard ;  in  which  case,  his  report  must  show  that 
the  order  of  the  court  in  that  respect  had  been  fully  com- 
plied with.^ 

The  proper  practice  would  be  to  set  forth  in  the  petition 
all  the  facts  showing  what  parties  are  interested  in  the 
premises,  and  the  nature  and  extent  of  that  interest,  as 
far  as  possible,  and  then  give  such  parties  the  regular-  eight 
days'  notice  of  the  application,  accompanied  with  a  copy 
of  the  petition ;  and  when  such  j)arties  do  not  appear, 
they  should  also  be  duly  notified  of  the  reference  and  of 
the  time  and  place  for  hokhng  the  same.^ 

Where  the  petition  is  presented.  The  petition  must  be 
presented  at  special  term,  where  the  proper  order  of  refer- 
ence will  be  made ;  and  a  special  guardian  of  the  infant 
heir  will  be  appointed  for  the  purpose  of  the  application. 
These  proceedings  being  similar  to  the  proceedings  on  an 
application  to  sell  an  infant's  real  estate,  reference  is  made 
to  that  part  of  this  chapter.^ 

Proceedings  to  compel  an  infant  trustee,  or  mortgagee^  to  convey. 

The  statute  provides,  that  whenever  anj'^  infant  shall  be 
seised  or  possessed  of  any  lands,  tenements  or  heredita- 
ments, by  way  of  mortgage  or  in  trust  only,  for  others, 
the  court  of  chancery,  on  the  petition  of  the  guardian  of 
such  infant,  or  on  the  petition  of  any  person  in  any  way 
interested,  may  compel  such  infant  to  convey  and  assure 
such  lauds,  tenements  and  hereditaments,  to  anj^  other 
person,  in  such  manner  as  the  said  court  shall  direct.* 

This  statute  applies  to  cases  where  the  infant  heir  takes 
by  descent  or  inheritance  from  his  ancestor,  lands  charged 


'  2  Van  Sant.  Eq.  Pr.,  336.  *  2  R.  S.,  194,  §  167  ;  11  N.  Y.,  56;  6 

'  Idem,  337.  Barb.,  499. 

*  Posi. 


PROCEEDINGS  BY  AND  AGAINST  INFANTS.  333 

witli  a  trust  for  some  other  person,  and  is  designed  to  give 
a  similar  remedj^  against  an  infant  heir  which  might  be 
had  bj^  suit  against  the  adult  heir,  under  the  former  equity 
practice,  and  which  is  now  had  by  action  under  the  Code. 
The  adult  heir  inlieritiug  lands  charged  with  a  trust,  refus- 
ing to  convey,  when  in  equity  he  ought  to  do  so,  may  be 
compelled  by  action ;  under  this  statute,  the  infant  heir 
may  be  compelled  by  petition. 

This  statute  contemplates  that  the  conveyance  may  be 
voluntary  or  compulsory ;  voluntary,  when  the  order  is 
made  on  the  application  of  the  infant  by  his  guardian  ask- 
ing for  the  liberty  to  convey ;  compulsory,  when  made  on 
the  application  of  some  party  interested,  asking  an  order 
that  such  infant  heir  do  convey.  In  either  case,  the  appli- 
cation is  by  petition,  and  is  deemed  a  special  proceeding 
under  the  Code.^ 

The  petition  is  to  be  filed  by  the  guardian  of  the  infant 
heir,  in  case  he  asks  for  authority  to  convey,  or  hj  some 
person  interested,  when  it  is  sought  to  compel  such  con- 
veyance. The  petition  must  set  forth  such  facts  as  to  show 
the  authority  of  the  court  to  make  the  order,  and  the  right 
of  the  party  in  interest  to  have  the  order  made.  If  there 
appear  to  be  no  conflicting  interests,  no  liens  or  incum- 
brances in  favor  of  the  infant,  the  court  will  order  the  con- 
veyance as  a  matter  of  course ;  otherwise,  a  reference 
will  be  ordered  to  ascertain  the  rights  of  the  parties. 

When  there  is  no  general  guardian,  the  necessary  steps 
must  be  taken  to  have  a  special  guardian,  or  a  guardian 
ad  litem  appointed,  which  have  been  previously  set  forth 
in  this  chapter.  The  proceedings  under  this  section  of 
the  statute,  in  the  appointment  of  a  guardian  ad  litem ;  the 
order  of  reference  and  the  proceeding  thereunder ;  the  re- 
port of  the  referee  and  the  confirmation  thereof,  and  the 
order  of  conveyance,  &c.,  have  been  fully  stated  in  a  pre- 
ceding part  of  this  chapter — to  which  reference  is  made,^ — 
while  treating  of  similar  proceedings /or  the  sale,  mortgag- 
ing or  leasing  of  infanfs  real  estate. 

The  order  compelling  infant  heirs  to  convey  cannot 
require  them  to  assume  obligations  beyond  those  imposed 
upon  them  by  the  casting  of  the  estate  of  the  ancestor  up- 
on them  by  the  mere  operation  of  law.  They  should  be 
required  to  transfer  to  the  party  entitled  the  estate  which 
the  law  casts  upon  them,  and  nothing  more. 

'  2  R.  S.,  194,  §  167  i  11  N.  Y.,  56.  »  Ante. 


334  ADMINISTRATION  OF  ClVHi  JUSTICE. 


CHAPTER  XXII. 

PROCEEDINGS  FOR  THE  COLLECTION  OF  DEMANDS  AGAINST 
SHIPS  AND   VESSELS. 

The  statutes  of  1862,  repealing  all  prior  acts  upon  the 
subject,  provides  that  whenever  a  debt,  amounting  to  fifty 
dollars  or  upwards,  as  to  any  sea-going  or  ocean-bound 
vessel,  or  amounting  to  fifteen  dollars  or  upwards,  as  to 
any  other  vessel,  shall  be  contracted  by  the  master,  oivner, 
charterer,  huihler  or  consignee,  of  any  ship  or  vessel,  or  the 
agent  of  either  of  them,  within  this  state,  for  either  work 
done  or  materials  or  other  articles  furnished  in  this  state, 
for  or  towards  tbe  building,  repairing,  fitting,  furnishing 
or  equipping  such  vessel  or  ship ;  or,  for  such  provisions 
and  stores  furnished  within  this  state  as  may  be  fit  and 
proper  for  the  use  of  such  vessel,  at  the  time  when  the 
same  were  furnished ;  or,  on  account  of  the  wharfage  and 
expense  of  keeping  such  vessel  in  x^ort,  including  the 
expense  incurred  in  employing  persons  to  watch  her ;  or, 
on  account  of  loading  or  unloading,  or  for  advances  made 
for  the  purpose  of  procuring  necessaries  for  such  ship  or 
vessel,  or  for  the  insurance  thereof;  or,  whenever  a  debt 
amounting  to  twenty-five  dollars  or  upwards  shall  be 
contracted  as  above,  within  this  state,  on  account  of  the 
towing  or  piloting  of  such  vessel,  or  on  account  of  the  in- 
surance or  i)remiums  of  insurance  of  or  on  such  vessel,  or 
her  freight,  such  debt  becomes  a  lien  upon  such  vessel, 
her  tackle,  apparel  and  furniture,  and  is  preferred  to  all 
other  liens  thereon  except  mariners'  wages.^ 

In  addition  to  the  above,  it  is  also  provided  that  when- 
ever any  ship  or  vessel  shall  have  been  run  down  or  afoul 
of  by  any  other  ship  or  vessel,  through  the  negligence  or 
willful  misconduct  of  those  navigating  such  other  ship 
or  vessel,  and  shall  thereby  have  sustained  damages  to 
the  extent  of  fifty  dollars,  the  owner  of  the  ship  or  vessel 
so  sustaining  damage  shall  have  a  lien  upon  the  ship  or 
vessel  causing  the  damage,  her  tackle,  apparel  and  furni- 
ture, to  the  extent  of  such  damage;  and  the  master,  owner, 

'  L.  1862,  ch.  482,  §  1 ;  4  N.  Y.  S.  at  L.,  653. 


DEMANDS  AGAINST  SHIPS  AND  VESSELS.  335 

agent  or  consignee  of  the  ship  or  vessel  damaged,  may 
enforce  the  lien  in  the  same  manner  and  with  the  same 
effect  as  in  case  of  other  liens  created  by  this  act;  but  such 
jiroceedings  must  be  commenced  within  ten  days  after  the 
damage  has  been  committed,  or  the  lien  will  cease.^ 

It  has  been  held  that  the  provisions  of  this  act  granting 
privileges  to  certain  descriptions  of  creditors  by  a  specific 
law,  applicable  to  specific  cases,  in  derogation  of  the  com- 
mon law,  cannot  be  extended  or  enlarged  by  construction.^ 

The  expiration  of  such  lien.  This  lien  ceases  at  the  expi- 
ration of  six  months  after  the  debt  was  contracted,  unless 
at  the  time  when  the  six  months  expire,  the  ship  or  vessel 
is  absent  from  the  port  at  which  the  same  was  contracted, 
in  which  case  the  lien  is  to  continue  until  the  expiration 
of  ten  days  after  the  return  of  such  ship,  &c.,  to  said  port. 

In  all  cases  such  debt  ceases  to  be  a  lien  upon  such  ship 
or  vessel,  whenever  such  ship  or  vessel  leaves  the  port  at 
which  the  debt  was  contracted,  unless  the  person  having 
such  lien,  within  twelve  days  after  such  departure,  causes 
to  be  drawn  up  and  filed  specifications  of  such  lien,  which 
may  consist  either  of  a  bill  of  particulars  of  the  demand, 
or  a  copy  of  any  written  contract  under  which  the  work 
may  have  been  done,  with  a  statement  of  the  amount 
claimed  to  be  due  from  such  vessel,  which  must  be  verified 
by  the  oath  of  the  person,  his  legal  representative,  agent 
or  assign.^  This  departure  from  the  port,  to  take  away 
the  lien,  must  be  upon  a  voyage  or  trip  in  the  pursuit  of 
its  regular  business.  The  departure  from  port  upon  a 
mere  trial  trip  is  not  sufiicient.*  ^ 

To  what  descr'ijytion  of  craft  the  term  "  shij^s  and  vessels  "  apjylies. 

Under  the  provisions  of  the  Eevised  Statutes,  which 
used  the  term  ship  and  vessel  in  the  same  general  sense  it 
seems  to  be  used  in  the  act  of  1862,  it  was  held  that  the 
term  "  ship  or  vessel "  did  not  include  a  canal  boat  fitted 
for  the  purpose  of  navigating  the  canal  by  steam.^  It  was 
held  by  Bkonsox,  J.,  tbat  the  provisions  of  the  Revised 
Statutes  were  applied  to  ships  and  vessels  which  navigated 
the  ocean,  and  such  as  only  required  to  have  a  coasting 
license  under  the  laws  of  the  United  States.® 


*  Idem.  661,  ^  33.  '  As  to  vessels  navigating  the  Western 
'  2  mil.  220;"^  3  N.  Y.,  438.  and  Northwestern  lakes,  see  Laws 

'  4  N.  Y.  S.  at  L.,  654,  §  2;  L.  1862,  1863,  ch.  422. 

ch.  482,  §  2.  •  5  Hill,  34;  sec,  also,  17  Barb.,  523. 
«  6  Hill,  494. 


336  ADMTNTSTRATION  OF  CIVIL  JUSTICE. 

The  law  of  1862^  discriminates  in  the  amount  of  the 
demand  entitling  a  party  to  a  lien  upon  a  ship  or  vessel, 
whether  the  vessel  be  a  sea-going  or  ocean-bound  vessel, 
or  not;  in  the  former  case  fixing  the  minimum  amount  at 
thirty-five  dollars,  and  in  the  latter  at  fifteen.  But  this 
definition  does  not  probably  enlarge  the  definition  of  the 
term  ship  or  vessel. 

Under  the  provisions  of  the  Kevised  Statutes,  it  was 
held  that  a  steamboat,  enrolled  as  a  vessel,  and  of  such 
burden  as  to  need  a  license  for  the  coasting  trade,  though 
used  as  a  traveling  theatre,  was  within  the  meaning  of  the 
act.^  Vessels  of  twenty  tons  burden  and  upwards  are 
required  to  be  licensed.' 

Where  such  specification  must  he  filed. 

The  specification  of  the  lien  above  required,  must  be  filed 
in  the  office  of  the  clerk  of  the  county  in  which  the  debt 
was  contracted,  except  where  such  debt  was  contracted  in 
either  of  the  counties  of  ISTew  York,  Kings  or  Queens, 
such  specification  must  be  filed  in  the  oflSce  of  the  clerk 
of  the  city  and  county  of  New  York.* 

ApplicoMon  for  a  warrant  against  any  such  ship  or  vessel. 

The  act  provides  that  any  person  having  such  lien  upon 
any  ship  or  vessel,  for  any  debt  contracted  as  above,  may 
make  application  to  any  officer  authorized  by  law  to  per- 
form the  duties  of  a  justice  of  the  supreme  court  at 
chambers,  in  the  county  in  which  said  ship  or  vessel  shall 
then  be,  for  a  warrant,  to  enforce  his  said  lien  and  to  col- 
lect the  amount  thereof.^ 

It  has  been  held  under  the  old  law,  that  an  attachment 
did  not  lie  against  a  vessel,  under  the  statute  authorizing 
these  summary  proceedings,  at  the  suit  of  a  sub-coii tractor, 
for  work  done  and  materials  found  at  the  request  of  the 
builder.  That  the  attachment  lay  only  where  the  debt 
was  contracted  by  the  owner,  agent,  master  or  consignee 
of  the  vessel ;  and  that  the  builder  was  not  included  in  the 
above  class.^  That  such  builder  was  not  an  agent,  for  he 
had  no  authority  to  bind  any  one  but  himself.^    But  the 


UN.  T.  S.  at  L.,  653;  L.  1862,  ch.     '  4  N.  Y.  S.  at  L.,  654,  §  3 ;  L.  1862, 

482.  ch.  482,  §  3. 

'  7  N.  Y.,  508  ;  see  2  Sandf.,  395.  » Idem,  §  4. 

'  Bioren's  L.  U.  S.,  332  to  334.  •  20  Wend.,  181. 


DEMAXDS  AGAINST  SHIPS  ANT)  VESSELS.  337 

law  of  1862  includes  also  the  builder,  as  well  as  the  others 
named  in  the  old  law.^ 

A  vessel  built  under  a  contract  to  build  and  deliver  at 
a  future  day,  belongs  to  the  builder  while  the  contract  is 
executory,  and  a  person  furnishing  him  materials  for  the 
same  has  a  lien,  which  he  may  enforce  against  the  pur- 
chaser.^ It  has  been  held,  however,  that  it  must  appear 
satisfactorily  that  the  materials  claimed  to  have  been  fur- 
nished for  the  vessel  were  actually  incorporated  into  it ; 
that  they  were  used  in  its  construction  as  well  as  ordered 
by  the  builder  for  it.  That  delivery  at  the  ship  yard  pur- 
suant to  an  order  was  not  suflicient.^  The  whole  theory 
of  a  lien  for  labor  and  materials  rests  upon  the  basis  that 
such  labor  and  materials  have  entered  into,  and  contri- 
buted towards,  the  production  or  equipment  of  the  thing 
upon  which  the  lien  is  impressed.  This  imposes  upon  the 
materialman  the  necessity  of  seeing  that  the  materials  are 
applied  to  the  purpose  for  which  they  are  procured,  if  he 
designs  to  sell  upon  a  lien  given  to  him.  The  act  gives 
him  a  privilege  over  all  general  creditors,  on  the  footing 
that  the  articles  have  contributed  to  the  making  of  the 
ship.  It  is  not,  therefore,  asking  too  much,  that  he  shall 
look  to  the  application  of  what  he  furnishes,  if  he  intends 
creating  a  statutory  lien.^  Where  materials  are  furnished 
for  two  vessels,  and  the  contract  does  not  specifically 
appropriate  them,  they  may  be  considered  as  furnished  to 
that  vessel  in  the  construction  of  which  they  were  used.* 
The  statute  of  Maine  in  this  particular  is  substantially  like 
our  own." 

The  application  for  a  warrant  must  be  in  writing,  and 
specify  l)y  tvhom  the  debt  was  contracted,  and  for  ivliat  ship 
or  vessel;  the  items  comjyosing  the  debt;  the  amount  claimed, 
and  that  the  same  is  justly  due  to  the  person  in  ivhose  behalf 
the  application  is  made,  over  and  above  all  payments  and 
just  deductions ;  any  assignment  or  transfer  of  such  debt,  if 
any  such  has  taken  place  ;  and  when  and  ivherc  the  specijica,- 
tion  of  such  debt  was  filed.  This  application  must  be 
verified  by  the  afiidavit  of  the  creditor,  or  of  the  person 

'  4  N.  Y.  S  at  L.,  G54,  §  1 ;  L.   1862,  *  Justice  Hoffman  in  Hiscock  v.  Ila/r- 
ch.  482,  §  1.  heck,  2  Bosw.,  510. 

»  25  Barb.,  26;  aflf'd    20  N.  T.,   181;  '2  Curtis  C.  C,  421  (Maine), 

see,  also,  11  N.  Y.,  35.  "  Hoffman,  J.,  2  Bosw.,  511. 

•  2  Bosw.,  506. 

II.— 43 


338  AD3IINISTRATI0N  OF   CIVIL  JUSTICE. 

iiiakiiig  the  application,  or  of  liis  or  their  agent  in  that 

behalf.' 

The  application  for  a  warrant  of  seizure  will  be  sufficient 
in  that  respect,  if  it  states  in  the  alternative  that  the  debt 
was  contracted  by  the  party,  naming  him,  and  designat- 
ing- him,  in  the  words  of  the  statute,  as  "  master,  owner 
or^ageut,"  without  specifying  in  which  character  he  acted.^ 

Under  the  provision  of  the  statute  requiring  that  the 
apphcation  should  state  the  items  composing  the  debt,  it  is 
sufficient  to  state  that  "  the  debt  was  contracted  for  ma- 
terials furnished  to  the  steamboat  Virginia,  at  the  port  of 
ISTew  York,  in  this  state,  and  that  the  account  annexed 
contains  the  items  composing  said  debt,"  where  such 
account  is  attached  to  the  application,  and  contains  in  detail 
the  articles  and  the  tunes  when  fm-nished.^' 

The  warrant  of  attachment. 

The  officer  to  whom  such  application  is  made  must 
thereupon  issue  a  warrant  to  the  sheriff,  specifying  the 
amount  of  the  claim,  and  the  names  of  the  persons  making 
such  claim,  and  commanding  him  to  attach,  seize  and  safely 
keep  said  ship  or  vessel,  her  tackle,  apparel  and  furniture, 
to  satisfy  such  claim,  if  established  to  be  a  lien  upon  such 
vessel,  according  to  law,  and  to  make  return  of  his  pro- 
ceedings under  such  warrant  to  the  officer  who  issued  the 
same,  within  teu  days  after  such  seizure.* 

Before  such  warrant  of  attachment  can  be  issued,  the 
j)erson  applying  therefor  must  deliver  to  the  officer  to 
whom  the  application  is  made,  to  be  filed  by  him,  an 
undertaking  to  the  effect  that  if  the  said  applicant  do  not, 
within  the  time  hereinafter  specified,^  prosecute  any  bond 
which  may  be  given  upon  the  discharge  of  such  warrant ; 
or,  if  the  said  applicant,  in  any  action  brought  upon  such 
bond,  be  finally  adjudged  not  to  have  been  entitled  to 
such  warrant,  the  parties  giving  such  undertaking  will  pay 
all  costs  that  may  be  awarded  against  such  apphcant,  not 
exceeding  the  sum  specified  in  such  undertaking — which 
must  be  at  least  one  hundred  dollars — and  any  damages 
that  may  be  sustained  by  reason  of  the  seizure  of  such 


'  4  N.  Y.  S.  at  L.,  655,  §  5;  L.  1862,  *  4  N.  Y.  S.  at  L.,  655,  §  6;  L.  1862, 

ch.  482,  §  5.  Ch.  482,  §  6. 

»  7  N.  Y.  508,  aflf'g  3  Sandf.,  572.  » Idem,  8  11 
'  7  N.  Y.,  512. 


DEMAimS  AGAINST  SHIPS  AND  VESSELS.  339 

vessel  under  such  warrant,  not  exceeding  the  sum  of  fifty 
dollars.  This  undertaliing  must  be  executed  by  the  appli- 
cants, or  one  of  them,  or  their  agent,  and  at  least  one 
surety,  who  must  be  a  resident  and  householder  within  the 
state,  and  such  undertaking  must  be  approved  by  the  said 
ofhcer.^ 

The  execution  of  such  loarrant. 

The  application  having  been  made  in  due  form,  and  the 
proper  undertaking  having  been  executed  and  approved 
by  the  officer  to  whom  the  application  is  made,  the  war- 
rant is  immediatelj'  issued  to  the  sheriff,  who  must  proceed 
forthwith  to  execute  the  same,  by  attaching,  seizing,  and 
safely  keeping  such  vessel,  as  directed  in  the  warrant.^ 
And  the  person  making  application  for  such  warrant, 
must,  within  three  days  after  the  issuing  of  the  same, 
cause  notice  to  be  published,  once  in  each  week  for  four 
successive  weeks,  in  some  newspaper  published  in  the 
county  in  which  such  vessel  may  then  be,  or,  if  no  news- 
paper be  so  published  in  such  county,  then  in  the  nearest 
county  in  which  a  newspaper  is  so  published,  setting  forth 
that  such  warrant  has  been  issued,  the  amount  of  the 
claim  specified  therein,  the  day  when  such  warrant  was 
issued,  and  that  such  vessel  will  be  sold  for  the  payment 
of  the  claims  against  her,  unless  the  master,  owner  or  con- 
signee thereof,  or  some  person  interested  therein,  appear 
and  discharge  such  warrant  according  to  law,  within 
thirty  days  trom  the  first  jiublication  of  such  notice.^  The 
sheriff"  must  make  a  return  of  his  proceediugs  under  such 
warrant  to  tMe  officer  who  issued  the  same,  within  ten  days 
after  such  seizure ;  and  in  such  return,  he  must  state 
whether  he  has  seized  such  ship  or  vessel  by  virtue  of  any 
other  warrant  or  warrants  ;  and,  if  so,  he  must  specify  in 
whose  behalf,  and  for  what  sums,  such  other  warrants 
have  been  issued,  resx)ectively,  and  the  time  of  his  recep- 
tion thereof.* 

The  discharge  of  the  icarrant. 

The  owner,  consignee,  agent  or  commander  of  such 
vessel,  or  any  person  interested  in  the  same,  may,  at  any 
time  prior  to  the  sale  of  such  vessel,  procure  a  discharge 


» Idem.  §  7.  =  Idem,  §  9. 

"  Idem,  §  8.  *  Idem,  §  6. 


340  ADMINISTKATION  OF  CIVIL  JUSTICE. 

of  siicli  warrant,  by  the  following  proceeding :  He  must 
apply,  in  person  or  by  attorney,  to  the  officer  who  issued 
the  warrant,  on  one  day's  notice  to  the  attaching  cre- 
ditor or  his  attorney,  for  an  order  to  discharge  the  same. 
Such  notice  must  specify  the  names,  places  of  residence 
and  places  of  business  of  the  sureties  proposed.  And  he 
must  deliver  to  such  officer  his  bond  to  the  creditors  prose- 
cuting such  warrant,  in  a  penalty  at  least  double  the 
amount  specified  in  the  warrant,  conditioned  that  the  obli- 
gors therein  will  pay  the  amount  of  any  and  all  claims 
and  demands  which  shall  be  established  to  be  due  to  the 
person  or  persons  in  whose  behalf  such  warrant  was  issued, 
and  to  have  been  a  subsisting  lien  upon  such  vessel  pur- 
suant to  the  provisions  of  the  statute,  at  the  time  of 
exhibiting  the  same.  This  bond  must  be  executed  with 
sureties,  and  the  attaching  creditors  have  a  right  to 
examine  them  as  to  their  sufficiency,  at  such  time  and 
place  as  the  officer  shall  appoint.^ 

Such  bond  being  executed  and  delivered  to  such  attach- 
ing creditor  or  his  attorney,  and  the  taxed  fees  of  the  sheriff 
having  been  paid,  the  officer  issues  his  order  that  said  war- 
rant be  discharged ;  and  thenceforth  no  farther  proceedings 
against  the  vessel  so  seized  can  be  had  under  these  provi- 
sions, founded  upon  any  demand  secured  by  the  bond  so 
given  in  discharge  of  such  attachment.^ 

Further  iwoceedings  ivhere  no  bond  is  given.  If  neither 
the  owner,  consignee,  agent,  commander,  or  any  person 
interested  in  such  vessel  so  seized,  appear  within  thirty 
days  after  the  first  publication  of  the  notice  required  in 
section  nine,  and  procure  the  discharge  of  SHch  warrant, 
and  if  the  creditor,  who  has  properly  exhibited  his  claim 
against  such  vessel,  shall  not  have  been  satisfied,  such 
creditor,  upon  producing  to  the  officer  issuing  such  warrant 
due  proof  of  the  publication  of  such  notice,  may  require 
the  officer  to  issue  his  order  to  the  sheriff  keeping  such 
vessel  under  such  warrant,  stating  the  amount  deemed 
necessary  to  be  raised  to  satisfy  all  unsatisfied  liens  which 
have  been  exhibited  against  such  vessel,  and  directing  the 
sheriff  to  proceed  and  sell  such  vessel,  her  tackle,  apparel 
and  furniture.  This  order  of  sale  may  be  issued  at  any 
time  after  the  seizure  of  such  vessel,  in  the  discretion  of 
the  officer,  upon  proof  of  personal  service  of  the  notice 


'  Idem,  §§  10,  11.  »  Idem,  §  12. 


DEMANDS   AGADJrST   SHIPS   AND   VESSELS.  341 

required  by  the  ninth  section  of  this  act,  and  of  notice  of 
the  application  for  sale,  upon  the  owners  of  the  vessel,  and 
upon  all  other  unpaid  creditors,  who  have  filed  their  speci- 
fications of  liens  pursuant  to  these  provisions.^ 

Within  ten  days  after  the  service  of  such  order,  the 
sherift',  unless  such  order  is  sooner  vacated,  is  required  to 
proceed  to  sell  the  vessel  so  seized  by  him,  her  tackle, 
apparel  and  furniture,  upon  the  same  notice,  in  the  same 
manner  and  in  all  respects  subject  to  the  provisions  of  the 
law  in  case  of  the  sale  of  j3ersonal  property  upon  execu- 
tion,^ and  the  sheriff  is  to  return  to  the  officer  granting 
such  order,  his  proceedings  under  the  same ;  and  the  pro- 
ceeds of  such  sale,  after  deducting  his  fees  and  expenses  in. 
seizing,  preserving,  watching  and  selling  such  vessel,  when 
duly  taxed,  are  to  be  retained  in  the  hands  of  the  sheriff' 
to  be  distributed  and  paid  as  thereinafter  provided.^ 

Notice  of  the  distribution  of  the  proceeds. 

At  the  time  of  issuing  such  order  of  sale,  the  officer 
granting  the  same  must  likewise  order  a  notice  to  be  pub- 
lished in  the  same  paper  in  which  the  notice  of  seizure  is 
requk'ed  to  be  published,  once  a  week  for  three  weeks, 
which  notice  must  require  all  persons  who  have  any  liens 
upon  such  vessel  by  virtue  of  these  provisions  of  the  statute, 
and  the  master,  owner,  agent  or  consignee,  and  all  other 
persons  interested  therein,  to  appear  before  him  at  a  day 
to  be  therein  specified,  not  less  than  thirty,  and  not  more 
than  forty  days  from  the  first  publication  of  such  notice, 
to  attend  a  distribution  of  the  proceeds  arising  from  the 
sale  of  such  vessel,  her  tackle,  apparel  and  furniture.  The 
officer  may  likewise,  in  his  discretion,  direct  that  such  dis- 
tribution be  made  before  a  referee  to  be  appointed  by  him 
on  notice.^ 

Hoio  other  creditors  may  establish  their  claims  in  such  case. 

The  proceeds  of  the  sale  of  such  vessel  remaining  in  the 
hands  of  the  sheriff  as  above  provided,  until  distributed, 
stand  in  the  place  of  the  vessel  itself,^  and  the  object  of 
requiring  notice  of  distribution  to  be  published  as  provided 
in  the  eighteenth  section,  is  to  give  other  creditors  an 


'  Idem,  §  15.  "  Idem,  658,  §  18. 

'  Arde,  pp.  49,  50,  et  seq.  ^  Idem,  §  19. 

»  4  N.  Y.  S.  at  L.,  G58,  g§  16  and  11. 


342  ADMmiSTKATION  OF  CIYIL  JUSTICE. 

opportunity  to  present  and  establish  their  claims  under 
these  provisions.  Prior  to  such  distribution,  any  person 
entitled  under  these  provisions  to  enforce  a  hen  against 
such  vessel,  may  enforce  the  same  against  these  proceeds 
in  the  hands  of  the  sheriff,  by  adopting  the  same  means  he 
would  to  enforce  his  lieu  against  the  vessel  which  these 
proceeds  represent.^ 

How  such  dahns  may  he  contested. 

At  any  time  before  a  final  distribution  of  these  proceeds, 
the  master,  owner,  agent,  consignee,  or  any  other  person 
having  any  interest  whatever  in  these  proceeds,  may  con- 
test any  claim  whatever  presented  or  exhibited  against 
such  vessel  or  the  proceeds  thereof.^ 

The  person  seeking  to  enforce  a  lien  against  such  vessel 
or  the  proceeds,  is  required  to  exhibit  his  application  to  the 
oflQcer,  specifying  by  whom  and  when  such  debt  was  con- 
tracted, aud  for  what  ship  or  vessel ;  the  items  composing 
such  debt ;  the  amount  claimed,  and  that  the  same  is  justly 
due  to  the  person  in  whose  behalf  the  application  is  made, 
over  and  above  all  payments  and  just  deductions ;  and 
when  there  has  been  any  assignment,  he  must  state  the 
same,  and  when  and  where  the  specification  of  such  debt 
was  filed,  which  must  be  verified  by  the  affidavit  of  the 
creditor,  or  of  the  person  making  the  application,  or  his 
or  their  agent,  in  his  or  their  behalf.^  This  constitutes  the 
claimant's  declaration  or  complaint. 

In  case  of  any  contest  by  the  master,  owner,  &c.,  or  any 
person  having  an  interest  in  the  proceeds,  the  contestant 
is  required  to  file  a  written  statement  or  answer,  designat- 
ing the  claims  he  desires  to  contest,  and  also  controverting 
such  allegations  of  the  petition  exhibiting  such  claim,  as 
he  may  be  able  to  controvert,  and  likewise  setting  uj)  any 
other  matter  of  defense  thereto ;  which  statements  and 
allegations  of  the  contestants  are  to  be  verified  by  the  aflfi- 
davit  of  the  party  presenting  them,  to  the  effect  that  the 
same  is  true  to  the  best  of  his  knowledge  or  belief.*  A 
copy  of  these  statements  and  allegations  must  be  served 
upon  the  person  whose  claim  is  intended  to  be  contested, 
or  his  attorney,  within  five  days  fi-om  filing  the  original 


Idem,  I  19.  =  4  N.  Y.,  S.  at  L.,  655,   §  5 ;  L.  1862, 

'  Idem,  g  20.  ch.  482,  §  5, 

*  Idemi,  §  21. 


DEIYIANDS  AGAINST   SHIPS  A^TD  ^TESSELS.  343 

with  the  officer,  otherwise  the  contest  will  be  deemed  to 
have  been  abandoned.^ 

In  this  manner  the  issue  is  formed.  If  the  answer  do 
not  contain  matter  of  defense  to  the  claim  contested,  it 
may  be  stricken  out  on  motion  of  any  i)erson  who  has 
exhibited  any  claim  against  said  vessel  or  such  proceeds.^ 
If  a  valid  issue  is  formed,  it  is  to  be  tried  before  a  judge 
in  the  same  manner  as  other  issues  which  are  authorized 
by  law  to  be  tried  before  a  judge,  and  at  some  early  day, 
to  be  fixed  by  the  officer  who  issued  the  warrant :  or  the 
officer  may  refer  the  issues  to  a  competent  referee,  to  hear 
and  determine  the  same,  in  the  same  manner  as  in  civil 
actions.^ 

The  statute  providing  that  such  issue  shall  be  tried  be- 
fore a  judge,  in  like  manner  as  other  issues,  &c.,  is  not  very 
definite  as  to  what  judge  shall  try  such  issue.  It  would 
seem  to  contemplate  that  the  judge  might  be  some  person 
other  than  the  officer  who  issued  the  warrant.  The  law 
providing  for  the  issuing  of  the  warrant  i^rovides  that  the 
application  may  be  to  any  officer  authorized  by  law  to  per- 
form the  duties  of  a  justice  of  the  supreme  court  at  cham- 
bers, in  the  county  within  which  such  ship  or  vessel  then 
is.^  By  statute,  supreme  court  commissioners  are  author- 
ized and  required  to  perform  all  the  duties,  and  to  execute 
every  act,  i)ower  and  trust  which  a  justice  of  the  supreme 
court  may  perlbrm  and  execute  out  of  court  according  to 
the  rules  and  practice  of  such  court,  and  pursuant  to  the 
provisions  of  any  statute  in  all  civil  cases,  except  as  other- 
wise therein  provided.^  The  same  statute  further  provides, 
that  every  recorder  of  a  city,  and  every  judge  of  the  county 
courts  of  any  county,  being  of  the  degree  of  counselor  in 
the  supreme  court,  shall,  by  \'irtue  of  their  resiDective  offi- 
ces, be  supreme  court  commissioners,  and  they  are  author- 
ized and  required  to  perform  all  the  duties  thereof,  &c.'^  So 
likewise,  the  judges  of  the  superior  court  of  law  in  the 
city  of  New  York  are  invested  with  the  same  authority.'' 

The  office  of  supreme  court  commissioners  as  such,  has 
been  abolished,^  but  the  authority,  duties  and  powers  there- 
of, are  still  exercised  by  other  judges.    By  the  amended 


» Idem,  8  21.  '2  R.  S.,  280,  §  18 ;  2  N.  Y.,  S.  at  L., 

« Idem,  §  22.  290. 

*  Idem,  §  2:^.  *  Idem,  §  32. 

*  Idem,  §  4.  "  Idem,  ^  33. 

•  Const.  1846,  §  8,  art.  14. 


344  ADMimSTKATION    OF   CrV^LL  JUSTICE. 

judiciary  act/  a  county  judge  lias  the  authority;  also, 
imder  the  Code.^ 

Trial  before  the  judge. 

The  issue  is  to  be  tried  in  the  same  manner  as  other 
issues  authorized  to  be  tried  before  a  judge.  If  the  issue 
iuvolved  the  question  of  the  validity  of  the  lieu  upon  the 
vessel,  the  claimant  must  not  only  prove  the  existence  of 
the  debt  contract  by  the  officer  or  person  designated  by  the 
statute,  but  he  should  also  prove  that  the  materials  fur- 
nished were  used  in  the  vessel.  Delivery  at  the  shipyard 
is  not  sufficient.^ 

Distribution  of  the  proceeds. 

When  the  amount  of  all  the  claims  exhibited  and  fonnd 
to  have  been  subsisting  liens  upon  such  vessel  at  the  time 
of  exhibiting  the  same,  shall  have  been  finally  determined, 
the  said  proceeds  are  then  to  be  distributed  by  the  court 
according  to  the  directions  given  in  the  eighteenth  section 
of  the  act,  on  the  motion  of  any  party  interested  therein 
or  otherwise.* 

The  claims  exhibited  are  to  be  paid  in  the  order  of  the 
delivery  of  their  respective  warrants  to  the  sheriff,  where 
they  are  found  to  be  subsisting  liens  upon  the  vessel  or  the 
proceeds  thereof  at  the  time  of  such  delivery.^  When 
there  are  among  them  contested  claims,  the  uncontested 
claims,  which  are  prior  to  the  contested  ones,  are  to  be 
jjaid,  on  motion  of  the  parties  interested,  in  the  order  of 
their  respective  priorities,  notwithstanding  such  contest ; 
aud  where  it  shall  appear  that  after  the  payment  of  all 
prior  uncontested  claims  and  their  respective  costs,  and 
all  prior  contested  claims  and  their  costs,  that  there  will 
still  be  a  surplus  of  such  proceeds  applicable  to  the  pay- 
ment of  any  subsequent  uncontested  claims,  such  claims 
may,  on  notice  to  the  owner  or  agent  of  the  vessel,  or 
other  parties  interested,  be  ordered  to  be  paid  out  of  such 
surplus,  together  Avith  costs.^  The  court  is  also  empowered 
to  invest  the  proceeds  of  the  sale  of  such  vessel  according 
TO  its  practice." 


'  4  N.  T.,  S.  at  L.,  586,  §  27,  (1848).  ^  Idem,  §  19. 

^  MOl,  svM.  3.  « Idem,  §  25. 

'  2  Bosw.,  506.  '  Idem,  §  26. 
*  N.  Y.  S.  at  L.,  659,  §  25. 


DEMAOT)S  AGAINST    SHIPS  AND  VESSELS.  345 

After  the  payment  of  all  claims  exhibited  which  have 
been  found  to  be  payable  out  of  the  proceeds,  &c.,  if  a 
surplus  remains  on  hand,  it  may  be  distributed  by  the 
court  to  the  persons  entitled  thereto,  after  publishing 
notice,  specifying  the  amount  of  such  surplus  proceeds, 
the  names  of  the  persons  applying  therefor,  together  with 
the  name  of  the  ship  or  vessel  trom  which  the  same  arose, 
and  the  date  of  the  sale  of  such  vessel,  once  a  week  for 
four  successive  weeks  in  some  newspaper  published  in  the 
county  in  which  such  vessel  was  sold,  or,  in  case  no  news- 
paper be  so  published  in  said  county,  then  in  the  nearest 
county  in  which  a  newspaper  is  so  pubUshed,^ 

Action  upon  the  bond  given  for  the  discharge  of  a  warrant  under 
these  ^yrovisions. 

The  bond  given  for  the  discharge  of  the  warrant  issued 
by  the  officer  according  to  the  provisions  of  the  statute  in 
these  cases  provided,  is  conditioned  that  the  obligors  will 
pay  the  amount  of  any  and  all  claims  and  demands  which 
shall  be  established  to  be  due  to  the  person  or  persons  in 
whose  behalf  such  warrant  was  issued,  and  to  have  been 
a  subsisting  lien  upon  such  vessel  pursuant  to  these  pro- 
visions, at  the  time  of  exhibiting  the  same.^ 

Preparatory  to  bringing  an  action  upon  such  bond,  the 
claim  must  be  made  out  and  exhibited  to  the  obligors  of 
the  bond,  and  a  demand  of  payment  made ;  which,  if  re- 
fused, a  breach  of  the  condition  of  the  bond  occurs,  when 
an  action  may  be  commenced  thereon,  in  any  court  having 
jurisdiction,  within  three  months  after  the  delivery  of  the 
bond  in  discharge  of  such  warrant.^  The  commencement 
of  the  action,  and  the  proceedings  therein,  will  be  the 
same  as  in  other  civil  actions. 

Though  the  statute  requires  a  bond,  with  the  condition 
that  the  obligors  shall  pay  all  such  claims  exhibited  which 
shall  be  established  to  have  been  subsisting  liens  upon 
such  vessel,  pursuant  to  the  provisions  of  this  title,  at  the 
time  of  exhibiting  the  same,  respectively,  yet  the  omission 
in  the  condition  of  all  after  the  word  "liens,"  does  not 
invalidate  the  bond.  It  was  held  that  where  the  bond  was 
voluntarily  executed  by  the  obligors  broader  than  required 
by  the  statute,  and  of  which  they  had  had  the  full  benefit, 


"  Idem,  §§  30,  9.  ^  Idem,  §  12. 

"  4  N.  T.  S.  at  L.,  §  11. 

n.— 44 


346  ADIMTNISTKATIOIT  OF  CIVIL  JUSTICE. 

they  could  not  object  on  that  account,  and  the  obligees 
certainly  could  not,  and  that,  therefore,  an  action  was 
maintainable  on  such  bond.^ 

In  an  action  on  such  bond,  the  only  questions  are  as 
to  the  nature  and  amount  of  the  claim  exhibited,  and 
whether  the  claim  was  a  subsisting  lien  at  the  time  of 
exhibiting  the  same.^  The  existence  of  such  hen  must  be 
established  by  the  plaintiff  on  such  trial.  Establishing 
it  before  the  officer  is  not  sufficient.^ 

The  plea  of  general  performance  has  been  held,  under 
the  old  practice,  to  be  an  inappropriate  plea,  although  if 
issue  were  taken  upon  it,  the  defendant  might  be  allowed 
to  introduce  any  evidence  tending  to  establish  it,  or  to 
disprove  the  existence  of  the  lien.^  Under  the  Code,  the 
plea  or  answer  would  be  according  to  the  facts,  as  in  other 
cases. 

The  bond  being  given  to  several  attaching  creditors,  It 
has  been  held  that  the  bond  must  be  sued  in  the  name  of 
all,  but  that  they  might  act  jointly  or  separately  in  the 
suits.^  That  doctrine  has  been  overruled,  and  it  is  now 
held  that  a  single  creditor  may  maintain  an  action  thereon 
in  his  own  name.^ 

If,  on  the  trial  of  said  action,  it  be  found  that  any  sum 
was  due  to  the  plaintiff,  which  was  a  subsisting  hen  upon 
such  ship  or  vessel  at  the  time  of  exhibiting  the  claim 
against  the  vessel,  judgment  is  to  be  rendered  that  the 
plaintiff  recover  the  same,  with  the  costs  and  allowances 
of  the  action,  and  costs  of  the  attachment  in  which  the 
bond  of  discharge  was  given,  and  that  he  have  execution 
therefor.  But  if  it  be  found  that  no  subsisting  lien 
existed  in  favor  of  the  plaintiff  at  the  time  of  the  exhibi- 
tion of  his  claim,  then  judgment  is  to  be  rendered  against 
him  for  the  costs  of  such  action,  and  also  for  the  costs  of 
the  proceedings  in  attachment,  including  the  amount 
of  the  sheriff's  fees  due  and  paid  on  releasing  such  vessel 
from  the  warrant.^ 

The  costs. 

In  addition  to  the  disbursements,  the  costs  of  the  attach- 
ment are  as  follows :  For  fihng  specification  of  Uen,  two 


'  26  Wend.,  502,  510.  ♦  2  N.  T.,  388 

'21  Id,  260.  »  4  N.  T.  S.  at  L.,  13. 

»  19  Id.,  527. 


DEMANDS  AGAINST  SHIPS  AND  VESSELS.  347 

dollars ;  for  exliibiting  lien  and  procuring  a  warrant  there- 
for, when  the  amount  of  the  lien  is  under  fifty  dollars,  ten 
dollars  ;  when  the  amount  of  the  lien  is  over  fifty  and 
under  two  hundred  and  fifty  dollars,  twenty  dollars  ;  when 
the  amount  of  the  lien  exceeds  two  hundred  and  fifty  dol- 
lars and  is  under  one  thousand  dollars,  thirty  dollars  ;  and 
when  the  amount  of  the  lien  exceeds  one  thousand  dollars, 
fiftj'  dollars.  For  attending  to  the  discharge  of  a  warrant 
upon  a  bond,  ten  dollars. 

The  sheriif' s  fees,  besides  his  expenses,  are :  For  serving 
warrant,  one  dollar ;  for  returning  same,  one  dollar ;  for 
expenses  of  keeping  such  vessel  in  custody,  the  necessary 
sums  paid  by  him  therefor,  not  exceeding  the  sum  of  two 
dollars  and  fifty  cents  per  day  for  each  day  the  vessel 
should  be  held  by  him  in  custody.  He  is  not  to  be  al- 
lowed expense  of  custody  upon  more  than  one  warrant  at 
one  time.  All  costs,  disbursements  and  fees  must  be  veri- 
fied by  affidavit,  and  be  adjusted  by  the  officer  who  issued 
the  warrant.^ 

The  lien  "may  he  assigned. 

A  lien  against  any  ship  or  vessel,  where  the  specifications 
thereof  has  been  duly  filed  in  the  office  of  the  clerk  of  the 
county  in  which  such  debt  was  contracted,  or  where 
the  debt  was  contracted  in  either  of  the  counties  of  Xew 
York,  Kings  or  Queens,  in  the  office  of  the  clerk  of  the 
city  and  county  of  New  York,  may  be  assigned  and  trans- 
ferred by  an  instrument  in  writing,  duly  acknowledged 
and  filed  in  the  same  office  where  the  original  specifications 
of  such  liens  were  filed.  Such  assignment  must  specify 
the  debt  intended  to  be  transferred,  and  specify  the  date 
of  the  filing  the  specification  thereof,  and  state  to  whom  it 
is  intended  to  transfer  it.^ 

It  is  the  duty  of  che  clerk  in  whose  office  such  transfer 
is  duly  filed,  to  note  such  transfer  and  the  name  of  the 
person  to  whom  the  transfer  is  made,  opposite  the  original 
entry  of  such  lieu.  After  the  filing  of  the  assignment  and 
transfer  as  above,  the  assignee  of  the  lien  may  enforce  it 
in  his  own  name.^ 

Proceedings  to  obtain  a  discharge  of  sicch  lien. 
When  the  specification  has  been  duly  filed  in  the  office 
of  the  clerk,  and  no  warrant  has  been  issued  to  enforce 

»  4  K  T.  S.  at  L.,  §  14.  »  4  N.  Y.,  S.  at  L.,  659,  §  27 ;  L.  1862, 

ch.  482,  §  27. 


348  ADMimSTEATION   OF   dVTL    JUSTICE. 

tlie  lien  against  the  vessel,  any  person  owning  or  interested 
in  the  ship  or  vessel,  may  apply  to  any  justice  of  the 
supreme  court  for  leave  to  discharge  such  lien  upon  giving 
bonds  therefor.  Such  application  must  be  in  writing  and 
must  set  forth  the  amount  of  the  lien  claimed  to  be  sub- 
sisting, and  the  grounds  of  defense  thereto ;  it  must,  also, 
set  forth  the  names  of -two  persons  proposed  sureties  for 
such  lien,  with  their  respective  residences  and  places  of 
business,  which  sureties,  if  leave  to  bond  be  granted,  jus- 
tify on  notice  to  the  persons  having  the  liens,  before  the 
officer  granting  such  leave.^ 

Upon  the  presentation  of  such  application  together  with 
proof  that  a  copy  thereof,  with  at  least  five  days'  notice  of 
the  time  and  place  of  presenting  the  same,  has  been  duly 
served  upon  the  person  having  such  lien,  such  officer  may, 
if  no  just  cause  be  shown  in  opposition  thereto,  grant 
leave  to  bond  the  said  claim.^  And  upon  the  execution 
and  delivery  of  such  bond  to  the  person  having  such  lien — 
which  bond  must  be  according  to  that  prescribed  in  the 
seventh  section  of  this  act,  and  must  be  approved  by 
the  officer — the  officer  must  order  that  said  lien  be  marked 
by  the  clerk  as  discharged  when  the  lien  ceases.^ 

The  bond  said  to  be  prescribed  in  the  seventh  section  of 
the  act,  is  only  alluded  to  in  that  section,  but  is  prescribed 
in  the  eleventh  section,  the  condition  of  which  is,  that  the 
obligors  therein  will  pay  the  amount  of  any  and  all  claims 
and  demands  which  shall  be  established  to  be  due  to  the 
person  or  jjersons  in  whose  behalf  such  warrant  was  issued, 
.and  to  have  been  a  subsisting  lien  upon  such  vessel,  pur- 
suant to  the  provisions  of  this  act,  at  the  time  of  exhibit- 
ing the  same.^ 

Power  of  the  officer  in  these  lyroceedings^  over  the  sheriff. 

The  officer  having  jurisdiction  in  the  i)roceedings  where 
a  warrant  has  been  issued,  has  power  to  require  any  sherifi" 
to  whom  the  warrant  of  attachment  was  issued  and  deli- 
vered, to  return  such  warrant  with  his  proceedings  thereon, 
and  to  pay  over  any  moneys  in  his  hands,  and  to  take  any 
steps  necessary  for  the  safety  of  the  vessel ;  and  he  may 
enforce  his  orders  to  the  sheriff  in  this  respect,  in  case  of 
disobedience,  by  attachment,  on  application  of  any  person 
interested  in  the  same.'' 

>  4  N.  T.,  S.  at  L.,  660,  §  28.  ^  Idem,  §§  7,  11,  29. 

"  Idem,  §  29.  «  Idem,  §  32. 


DEATH,  disco\t:ry  OF.  349 


Appeals. 
Either  party  lias  the  right  to  except  to  and  appeal  from 
the  report  of  any  referee  trying  an  issue  referred  to  him  in 
these  proceedings,  or  to  the   decision  of  the  judge,  as 
in  civil  actions.^ 


CHAPTER  XXIII. 


PROCEBDLNGS   TO  DISCOVER  THE  DEATH  OF  PERSONS  UPON 
WHOSE  LIVES  ANY  PARTICULAR  ESTATE  MAY  DEPEND. 

Any  person  entitled  to  claim  lands  or  tenements,  after 
the  death  of  any  other  person  having  any  prior  estate 
therein,  may,  once  in  each  year,  apply  by  petition  to  the 
supreme  court  for  an  order  that  the  person  upon  whose  life 
such  prior  estate  depends  be  produced  and  shown  in  the 
manner  provided  by  statute,^  by  the  guardian,  husband, 
trustee  or  party  having  the  custody  of  such  other  person, 
or  of  his  estate,  or  who  may  be  entitled  to  such  custody.^ 

The  petition. 

The  petition  must  state :  1.  the  interest  of  such  appli- 
cant in  the  lands  or  tenements  described  therein;  2.  It 
must  also  state  that  he  has  cause  to  believe  and  does 
believe  that  the  person  upon  whose  life  such  prior  estate 
depends  is  dead,  and  that  his  death  is  concealed  by  the 
party  against  whom  the  application  is  made.^  This  peti- 
tion must  be  verified  by  affidavit,  and  a-  copj^  must  be 
served  upon  the  person  against  whom  the  application  is 
intended  to  be  made,  with  at  least  fourteen  days'  notice 
of  the  time  and  i)lace  at  which  the  same  is  intended  to  be 
presented.^ 

No  sufficient  cause  appearing  why  the  prayer  of  the 
petition  should  not  be  granted,  and  upon  proof  of  the  due 

'  Idem,  §  24.  '  Idem,  §  1. 


•  laem,  g  Z4.  -  laem,  j^  i, 

^  Tit.   8,  2  R.  S.,  343,  §§  2,  Ac. ;  2  N.     '  Idem,  §  2 

Y.  S.  at  L.,  354,  §  2,  &c.  '  Idem,  \  3 


350  ADMES^ISTEATION  OF  CIVIL  JUSTICE. 

service  of  the  requisite  notices,  the  court  will  proceed  to 
order  the  party  against  whom  the  petition  is  exhibited  to 
produce  and  show  the  person  upon  whose  life  such  estate 
depends,  at  such  time  and  place,  and  to  such  referee  or 
referees*  of  the  court  as  are  named  in  such  order.^  A  cer- 
tified copy  of  this  order  must  be  served  upon  the  party 
against  whom  it  is  issued,  at  least  fourteen  days  prior  to 
the  time  named  in  the  order,  at  which  the  person  is 
required  to  be  produced.  At  which  time  and  place  the 
referee  or  referees  must  attend  for  the  piu'pose  of  attend- 
ing to  the  execution  of  such  order;  and  such  referee  or 
referees  have  power  to  take  proof  by  the  examination  of 
witnesses  to  be  sworn  by  them,  as  to  the  identity  of  the 
person  upon  whose  life  such  estate  depends.^ 

Examination  of  witnesses  before  the  referees. 

The  referee  or  referees  attending  at  the  time  and  place 
named  in  the  order,  proceed  to  ascertain  whether  the  per- 
son ujjon  whose  life  the  estate  depends,  is  described  in  the 
petition.  For  the  purpose  of  ascertaining  the  identity  of 
the  person  produced,  they  cause  witnesses  to  be  subpoeDaed 
and  brought  before  them,  which  subpoenas  are  issued  and 
served  in  the  same  manner  as  in  usual  cases  of  reference. 
These  witnesses  are  sworn  and  examined  by  the  referees.^ 

When  habeas  corpus  may  issue. 

If  the  person  required  to  be  produced  is  confined  in 
jnison,  or  is  detained  hj  any  other  i)erson,  these  facts 
being  made  to  ai)pear  to  the  satisfaction  of  the  referee,  on 
due  proof  by  athdavit,  a  writ  of  hadeas  corpus  will  be 
allowed  to  issue  out  of  the  supreme  court  to  bring  the 
body  of  such  person  before  such  referee,  which  writ  is  to 
be  served  and  executed  in  the  same  manner  as  such  writs 
to  inquire  into  the  cause  of  the  detention  of  any  person  ; 
and  the  law  in  relation  to  obedience  to  such  writ  is  made 
applicable  to  the  writ  issued  under  these  provisions.* 

*  The  R.  S.  says:  "To  such  master  of  the  court,  or  commissioner  or  commis- 
sioners, not  exceeding  two,  as  shall  be  named  in  such  order." 


'Idem,  §4.  '  Idem,  §§  5,  6. 

*  Idem,  §  5.  ••  Idem,  §  7  ;  see  ante,  206. 


DEATH,   DISCOVERY  OF.  351 


Return  of  referee. 

When  the  person  is  duly  produced  before  the  referee, 
and  is  identified,  the  referee  will  make  his  return  to  the 
court,  stating  that  the  person  upon  whose  life,  &c.,  the  prior 
estate  in  the  lands,  &c.,  mentioned  in  such  petition,  de- 
pended, was  produced  pursuant  to  the  order  of  the  court ; 
and  if  such  referee  was  personally  acquainted  with  such 
person,  or  if  his  identity  was  proved  by  other  witnesses,  he 
should  report  according  to  the  fact ;  and  in  case  testimony 
was  taken,  should  report  the  same  by  setting  it  forth  in 
his  report.  And  if  the  person  was  not  produced,  such  fact 
should  be  stated  in  the  return.^ 

Upon  the  return  and  filing  of  the  report  of  the  referee, 
when  it  shall  appear  that  the  order  of  the  court  has  been 
complied  with,  the  proceedings  are  to  be  discharged,  and 
an  entry  of  the  return  is  to  be  made  upon  the  minutes  of 
the  court ;  and  an  order  that  the  costs  of  the  proceedings 
be  paid  by  the  applicant  should  be  obtained  and  entered.'* 

Where  it  appears  by  the  return  that  the  person  was  not 
produced,  and  there  is  proof  of  the  due  service  of  notice 
of  the  order  made  in  the  premises,  upon  the  party  against 
whom  it  was  issued,  as  herein  required,  the  statute  pro- 
vides that  in  such  case  the  person  shall  thereafter  be  taken 
as  dead,  and  the  party  entitled  may  forthwith  enter  upon 
the  lands  and  tenements  in  the  same  manner  as  if  the 
person  were  actually  dead.^ 

'When  the  person  to  be  lyroduced  resides  beyond  the  jurisdiction  of 

the  court. 

When  the  person  upon  whose  life  such  estate  depends 
resides  out  of  the  state,  and  the  party  against  whom  this 
proceeding  is  instituted  shall,  by  atfidavit,  make  it  appear 
to  the  court,  in  any  stage  of  the  proceedings,  that  the  said 
person  is,  or  lately  was,  at  some  place  certain  beyond  the 
sea,  or  elsewhere  out  of  the  state,  the  proceedings  must 
cease,  unless  the  party  prosecuting  the  same  will,  at  his 
own  cost  and  charges,  obtain  a  commission  to  be  issued 
out  of  the  court,  to  be  directed  to  one  or  more  commis- 
sioners, to  be  appointed  for  that  purpose  by  the  coiu't, 
residing  at  the  i)lace  abroad  named,  to  obtain  a  personal 
view  of  such  person.* 

'  Idem,  §  8.  '  Idem,  g  10. 

"  Idem,  §  9.  *  Idem,  g  11. 


352  ADMTNTSTKATION   OF   CIVIL  JUSTICE. 

If  the  commission  is  appointed,  notice  must  be  served 
upon  the  opposite  party  for  a  period  varying  according  to 
the  place  where  its  inquisition  is  to  be  held.  If  it  be  in 
either  of  the  states  of  the  Union,  or  in  either  of  the 
Canadas,  at  least  two  months'  notice  must  be  given ;  if 
within  either  of  the  West  India  islands,  at  least  three 
months'  notice  must  be  given ;  and  for  all  other  places  at 
least  four  months'  notice  must  be  given.^  The  commis- 
sioners thus  appointed  abroad  possess  the  same  powers 
and  proceed  in  the  same  manner  as  if  acting  within  this 
state,  in  this  proceeding.^  And  their  return  is  to  be  re- 
ceived by  the  court,  and  the  effect  of  their  return  is  to  be 
the  same  as  if  made  by  a  referee  of  the  court  within  this 
state.^ 

Other  proof  that  such  person  is  still  living, 

Notwithstanding  such  person  may  have  not  been  pro- 
duced before  such  commissioners,  the  party  against  whom 
such  proceeding  is  instituted  may  show  to  the  court,  by 
affidavit,  that  the  i)erson  is  or  was  living,  at  the  time  of 
any  return  made  by  any  commission  appointed  under 
these  provisions,  and  that  such  party  used  his  utmost 
endeavors  to  procure  the  attendance  of  such  person  before 
the  commission,  according  to  the  exigency  of  the  order, 
but  that  he  could  not  produce  or  compel  the  attendance 
of  such  jjerson.*  And  the  court,  being  satisfied  of  the 
truth  of  such  representation,  may  order  an  entry  to  be 
made  upon  the  minutes,  declaring  that  there  is  no  reason 
to  presume  the  death  of  such  person,  and  that  all  further 
proceedings  on  such  api^lication  cease.^ 

Evidence. 

A  copy  of  any  entry  made  in  the  minutes  of  the  court 
in  this  proceeding,  duly  certified,  is  to  be  received  as  evi- 
dence of  the  facts  therein  stated,  in  all  the  courts  of  the 
state.® 

Costs,  when  not  otherwise  provided  for  in  this  act,  are 
to  be  adjudged  to  either  party,  in  the  discretion  of  the 
court."' 

'  Idem,  §  12.  ^  Idem,  §  16. 

»  Idem,  §  13.  » Idem,  §  17. 

"  Idem,  §  14.  ^  Idem,  §  18. 
♦  Idem,  §  15. 


PAETITION.  353 


Hestoraiion  of  the  estate. 

When  a  party  bas  taken  possession  of  any  estate  under 
the  provisions  of  this  act,  upon  the  presumption  of  the 
death  of  the  person  upon  whose  life  such  estate  depended, 
aud  it  shall  subsequently  be  ascertained  in  any  action  that 
such  person  is  still  living,  the  premises  is  to  be  restored 
to  the  party  entitled,^  and  the  person  so  evicted,  or  his 
executors,  &c.,  may  recover  the  full  profits  of  the  estate 
during  the  time  of  such  eviction,  &c.^ 


CHAPTER  XXIY. 

PAKTITION. 


The  statute  provides  that  where  several  persons  shall 
hold  and  be  in  possession  of  any  lands,  tenements,  or 
hereditaments,  as  joint  tenants,  or  tenants  in  common,  in 
which  oue  or  more  of  them  shall  have  estates  of  inheritance, 
or  for  life  or  lives,  or  for  years,  any  one  or  more  of  them, 
being  of  full  age,  may  apply  for  a  division  and  partition 
of  such  premises,  according  to  the  respective  rights  of  the 
Ijarties  interested  therein  ;  and  for  a  sale  of  such  premises, 
if  it  shall  appear  that  a  partition  thereof  cannot  be  made 
without  great  prejudice  to  the  owners.^ 

Whether,  since  the  Code,  the  proceediug  for  partition 
must  be  by  action,  or  whether  the  proceeding  by  petition 
may  also  be  adopted  has  not  been  definitely  settled.  The 
better  opinion  seems  to  be,  however,  that  the  proceeding 
should  be  by  action  under  the  Code.*  The  Code  declares 
that  the  i)ro visions  of  the  Eevised  Statutes  relating  to  the 
partition  of  lands,  tenements  and  hereditaments  held  by 
joint  tenants  or  tenants  in  common  shall  apply  to  actions 
for  such  i)artition  brought  under  this  act,  so  far  as  the  same 
can  be  so  applied  to  the  substance  and  subject  matter  of 
the  action,  without  regard  to  its  form.^ 

Since  it  has  been  questioned  whether  a  proceeding  in 
partition  commenced  by  petition  is  now  valid,  and  the 

'  Idem,  §  19.  ♦  17  N.  Y.,  218;  25  Barb.,  336;  St 

«  Idem,  §  20.  Barb.,  22. 

»  2  R.  S.,  317,  §  1.  » Idem,  §  448. 

n.— 45 


354  ADMIXISTEATIOK   OF   CIVIL  JUSTICE. 

supreme  court  refused  to  compel  a  purchaser  under  such 
proceedmg  to  perfect  his  purchase,  because  of  the  doubt  as 
to  the  validity  of  such  a  proceeding,^  it  is  advisable  to  com- 
mence such  proceedings  as  an  action  under  the  Code,  the 
practice  in  which  will  be  similar  to  the  former  practice  in 
the  court  of  chancery,  where  the  proceeding  was  by  bill. 

What  courts  have  jurisdiction.  The  sui)reme  court  suc- 
ceeded to  the  equitable  powers  of  the  court  of  chancery, 
and  thus  has  general  jurisdiction  of  an  action  for  the 
partition  of  real  estate.^  The  county  courts  have  also 
jmlsdiction  of  such  action.'  The  superior  court  and  the 
court  of  common  pleas  of  the  city  of  New  York,  when  the 
premises  are  situated  in  that  city,  have  jurisdiction,  irre- 
spective of  the  residence  of  the  ijarties  interested.*  The 
same  jurisdiction  is  also  conferred  upon  the  superior  court 
of  the  city  of  Buffalo,  when  the  premises  are  situated  in 
that  city ;  also  the  mayors'  and  the  recorders'  courts  of 
cities  have  the  like  jurisdiction,  when  all  the  defendants 
reside  within  the  city  in  which  the  court  is  situated.^ 

The  x>^t-intiff  in.  partition  ynust  he  of  full  age. 

This  statute  does  not  authorize  an  infant  to  be  a  party 
l)laintiff,  even  jointly  with  other  plaintiffs  of  full  age.^  But 
when  the  interest  of  an  infant  co-tenant  requires  such  par- 
tition or  a  sale,  and  it  is  desirable  that  proceedings  be 
Instituted  for  that  purpose,  application  must  be  made  to 
the  supreme  court  for  that  purpose,  and  the  leave  of  such 
court  must  be  obtained." 

What  must  he  the  plaintiff's  title.  The  plaintiff  must 
hold  and  he  in  possession  of  lands,  tenements  or  heredita- 
ments, as  a  joint  tenant,  tenant  in  common,  in  which  one 
or  more  of  such  tenants  has  an  estate  of  inheritance,  or  for 
life  or  lives,  or  for  years.'  To  sustain  the  action,  the  title  of 
the  plaintiff"  must  be  clearly  established,^  and  his  possession 
must  not  be  adverse.^"  As  between  tenants  in  common, 
the  possession  of  one  is  the  possession  of  all ;  therefore, 
when  the  land  has  descended  to  them,  one  of  the  tenants, 


37  Barb.,  22.  in  relation  to  the  sale  of  real  estate 

'  Judicary  Act  of  ] 847.  of  infants;    see  also  2  R.  S.,  330 

=  Code,  §  30.  §  91  (orjg.  ^  86.) 

*  Code,  §  34;  2  Duer,  635;  13  How.,     «  2  R.  S.,  317,  §  1. 

254;  4  Duer,  682.  »  i  Johns.  Ch.,  111. 

•■  Code,  §  33.  10  2  Barb.  Ch.,  398  ;  3  Id.,  608  ;  9  Cow., 

•  4  Sandf.  Ch.,  508.  530 ;  Hoflf.,  560. 
'  L.  1852,  411,  §  1.     See  proceedings 


PAETITION.  355 

thouo:h  not  in  actual  possession,  may  maintain  the  action, 
the  lauds  beiug  unoccupied/  It  would  be  othervise,  how- 
ever, where  there  had  been  an  actual  ouster  of  the  plaintiff 
by  one  of  the  co-tenants.^  But  to  take  advantage  of  such 
a  defense,  where  the  plaintiff  alleges  his  title  as  a  tenant 
in  common  with  the  defendants,  the  defendant  must  allege 
such  ouster  in  his  answer.^ 

This  action  for  partition  can  be  maintained  by  a  tenant 
in  common  of  a  vested  remainder?  It  also  may  be  main- 
tained by  the  several  owners  of  property  subject  to  a  lease,* 
also,  by  an  assignment  for  the  benefit  of  tfie  creditors  of  a 
tenant  for  life.'*  But  the  action  cannot  be  maintained 
between  a  tenant  in  fee  and  his  landlord  f  nor  can  it  be 
maintained  by  a  widow  claiming  only  in  respect  of  her 
dower ;"  nor  can  it  be  maintained  by  one  having  a  mere 
future  contingent  interest  in  an  undivided  share.^ 

Possession.  The  possession  required  by  statute  may  be 
actual  or  constructive,^  as,  the  possession  of  one  tenant  in 
common  is,  constructively,  the  possession  of  all,'"  or  the 
possession  of  the  tenant  is  deemed  the  possession  of  the 
landlord."  Having  an  estate  and  a  constructive  possession 
is  sufficient.'^ 

The  commencement  of  the  action.     The  parties  thereto. 

The  action  is  commenced  in  a  manner  similar  to  the 
former  commencement  by  petition,  that  is,  the  complaint 
takes  the  i)lace  of  the  i3etition,  and  should  contain  all  the 
essential  averments  of  facts  formerly  requisite  to  a  good 
petition.  Several  joint  tenants  or  tenants  in  common  may 
unite  as  parties  plaintiffs  in  the  action,  although  the  suit 
may  be  commenced  in  the  name  of  one,  and  the  others 
may  be  joined  as  defendants.'^  When  the  tenant  com- 
mencing suit  has  a  wife,  whether  an  infant  or  an  adult, 
she  is  a  j)roper  and  necessary  party  because  of  her  right 
of  dower  which  would  be  divested  by  the  judgment  in  the 
case." 

AYhere  the  plaintiff  is  an  infant,  the  first  proceeding  in 
the  commencement  of  the  action,  is  to  apply  to  the  court 

>  14  N.  Y.,  235.  "  2  Paige,  387. 

*  3  Paige.  245.  "  See  5  Denio,  385, 
M3How.,  476;  15N.  Y.,  617.  "  14  N.  Y.,  235. 

*  5  Paige.  518.  "5  Paige,  518. 

*  2  Barb.,  599.  "  15  N.  Y.,  617;  13  How.,  476. 

*  4  Paige,  639.  "  2  Van  Sant.  Eq.  Br.,  11. 
'  15  Johns.,  319.  "  7  Paige,  386. 


356  ADMINISTKATION  OF  CIVIL  JUSTICE. 

for  an  order  for  such  purpose.^  This  application  is  by  peti- 
tion, on  behalf  of  the  infant  by  his  general  guardian,  if  he 
has  one,  and  if  none,  then  by  some  relative  with  whom  he 
resides,  if  under  the  age  of  fourteen  years,  and  by  himself 
when  he  is  over  that  age  and  has  no  general  guardian. 

The  petition  must  show  to  the  court  that  the  infant  is  pos- 
sessed of  real  estate  as  tenant  in  common  or  joint  tenant, 
and  that  the  interest  of  such  infiint  require  such  partition 
or  sale  of  said  estate.  The  court  will  authorize  proceed- 
ings for  that  purpose  to  be  instituted,  when  these  things 
are  made  satisftictorily  to  appear;  and  will  proceed  to 
appoint  a  competent  next  friend  to  conduct  the  proceed- 
ings on  the  part  of  such  infant,  on  the  proper  application.^ 
This  petition  is  simply  addressed  to  the  court,  without 
being  entitled,  setting  forth  the  facts  showing  that  the 
infant  is  entitled  to  the  partition,  and  the  reasons  why  it 
is  proposed  to  apply  for  the  same;  and  it  should,  also, 
state  whether  the  infant  owns  any  other  land  in  common.^ 

The  court  must  be  satisfied  of  the  propriety  of  such 
an  order,  and  its  usual  course  is,  to  order  a  reference  to 
report  the  facts,  that  it  may  be  informed  on  the  subject.* 
The  court  being  satisfied  that  the  interest  of  the  infant 
requires  the  partition,  will  grant  the  order,  which  is  to  be 
filed  and  entered  in  the  county  where  the  real  estate  is 
situated.^  The  api)lication  for  the  appointment  of  a  giiar- 
dicm  ad  litem,  or  next  friend,  may  be  united  with  the  one 
asking  leave  to  commence  suit,  and  the  court,  not  unfre- 
quently  appoints  the  general  guardian  such  next  friend. 

The  statute  of  1852  provides,  that  the  next  friend  shall 
be  appointed  upon  the  like  application,  and  in  like  man- 
ner, and  shall  give  the  like  security  and  possess  such 
powers  as  are  specified  and  required  in  sections  tivo,  three 
and  four  of  title  third  chapter  ^ve  of  the  third  part  of  the 
Kevised  Statutes.*^ 

The  provisions  above  referred  to  are  those  which  provide 
for  the  appointment  of  guardian  ad  litem  for  minors  in 
proceedings  for  partition,  where  it  is  represented  to  the 
court  that  there  are  minors,  who  should  be  parties  to 
the  proceedings,  and  that  notice  of  an  intention  to  apply 
to  such  court  for  such  order  had  been  served  upon  the 


'  L.  1852,  411,  §  1 ;  see  15  How.,  383 ;  *  2  Van  Sant.  Eq.  Pr.,  9. 

21  Id.,  479;  4  N.  Y.  S.  at  L.,  615.  '  2  Van  Sant.  Eq.  Pr.,  10. 

'  Idem,  §  2,  2  R.  §.,  317,  §  2.  "  4  N.  Y.  S.  at  L.,  615. 
'  See  Rule,  47. 


PAKTITION.  357 

general  guardian,  at  least  ten  days  prior  to  such  applica- 
tion.^ The  guardian  thus  appointed,  is  required  to  give 
bonds  in  such  penalty,  and  with  such  surety,  as  the  court 
shall  direct,  to  the  people  of  the  state,  conditioned  for  the 
faithful  discharge  of  the  trust  committed  to  him,  and  to 
render  a  just  and  true  account  of  his  guardianship  in  all 
courts  and  places  when  thereunto  required ;  and  until  this 
bond  is  given  he  is  not  authorized  to  enter  upon  the  dis- 
charge of  his  duties. 

Before  commencing  the  action  it  is  also  important  to 
determine  who  should  be  made  defendants  thereto.  The 
statute  provides  that  every  person  interested  in  the  pre- 
mises, whether  in  possession  or  otherwise,  including  those 
having  an  estate  therein  as  tenant  for  years,  for  life,  by 
the  curtesy  or  in  dower,  and  the  persons  entitled  to  the 
reversion,  remainder  or  inheritance  after  the  termination 
of  any  particular  estate  therein,  and  every  person  who,  by 
any  contingency  contained  in  any  devise,  grant  or  other- 
wise, may  become  entitled  to  any  beneficial  interest  in  the 
premises,  and  every  person  entitled  to  dower  in  the  pre- 
mises, if  the  same  has  not  been  admeasiu:ed,  may  be  made 
parties  to  the  proceedings.^ 

When  lands  are  held  by  the  people  of  the  state  and  an 
individual  thereof,  as  tenants  in  common,  and  partition  is 
sought,  the  people  are  also  to  be  made  parties  the  same  as 
individuals,  and  the  like  orders  and  decrees  may  also  be  had 
against  them.  The  petition  and  other  notices  are  to  be 
served  upon  the  attorney-general  who  ajipears  in  behalf 
of  the  people  of  the  state.^ 

When  parties  interested  are  unknown,  that  fact  should 
be  stated,  and  they  may  be  made  parties  to  the  suit,  gene- 
rally without  stating  their  names,  but  by  merely  adding 
to  the  title  of  the  summons  and  complaint  "  and  all  per- 
sons or  owners  unknown  having  or  claiming  any  interest 
in  the  premises  sought  to  be  partitioned  in  this  action." 

Idiots,  lunatics,  habitual  drunkards,  &c.,  are  also  to  be 
made  parties  when  interested,  with  their  committees  ;  and 
the  service  of  summons  should  be  upon  both.*  When  a 
sale  of  the  premises  is  contemplated,  a  married  woman 
having  merely  an  inchoate  right  of  dower,  should  be  united 
with  her  husband,'  and  when  the  married  woman  has  a 


'  2  R  S.,  317,  S§  2,  3,  4.  *  3  Barb.  Ch.,  24. 

'  2  R.  S.,  318,  §g  5  aud  6.  *  7  Paige,  386. 

»  2  R.  S.,  331. 


358  ADMINISTRATION  OF  CIVIL  JUSTICE. 

separate  estate  as  a  tenant  in  common  with  others,  she 
may  be  made  a  party  defendant  without  her  husband.^ 

Judgment  creditors,  mortgagees,  reversioners  or  any 
person  having  or  being  entitled  to  contingent  interests  in 
the  property,  are  proper  parties  ;  and  to  affect  their  inter- 
ests therein,  they  are  necessary  parties.^ 

The  action  is  commenced  by  the  service  of  a  summons 
and  complaint,  or  a  summons  alone.  The  summons  is 
entitled  with  the  full  names  of  the  parties  to  the  action, 
accompanied  with  a  notice  of  the  object  of  the  action,  and 
that  no  personal  claim  is  made.^  The  mode  of  serving  the 
summons,  either  personally,  by  pubhcation  or  by  substi- 
tuted service,  and  the  proof  thereof,  is  the  same  as  in  civil 
actions,^  and  at  the  same  time  notice  of  the  pendency  of 
the  action  should  be  made  out  and  filed.'* 

The  pleadings.  The  rules  of  pleading  are  the  same  as  in 
other  civil  actions.^  The  complaint  takes  the  place  of  the 
former  petition,  and  must  therefore  contain  all  that 
the  statute  required  to  be  stated  in  the  petition.^  It  is 
provided  that  the  bill  or  petition  must  describe  particu- 
larly the  premises  sought  to  be  divided  and  sold.  That 
it  must  set  forth  the  rights  and  titles  of  all  persons 
interested  therein,  so  far  as  the  same  are  known,  including 
the  interest  of  any  tenant  for  years,  or  for  life,  or  by  the 
curtesy,  or  in  dower,  and  the  persons  entitled  to  the  rever- 
sion, remainder  or  inheritance  after  the  termination  of 
any  particular  estate  therein,  and  every  person  who,  by  any 
contingency  contained  in  any  devise,  grant  or  otherwise, 
may  become  entitled  to  any  beneficial  interest  in  the  pre- 
mises." The  complaint  must  likewise  state  the  facts,  where 
the  parties,  or  any  share  or  interest  of  the  parties,  is  un- 
known, uncertain,  or  contingent ;  or  where  the  ownership 
of  the  inheritance  depends  upon  an  executory  devise ;  or 
where  the  remainder  is  a  contingent  remainder,  so  that 
such  parties  cannot  be  named.^  If  creditors  have  specific 
hens  upon  the  premises  and  they  are  made  parties,  the 
complaint  must  also  state  the  nature  of  such  liens  or 
incumbrances.^    Like  the  complaint  in  other  civil  actions, 


^L.  I860,  158,  §7.  ^2  Abb.,  14. 

"  2  R.  S.,  318,  §  10 ;  2  Barb.   Ch.   Pr.,  *  8  How.,  458. 

218.  '  2  R.  S.,  318,  §  21. 

=  2  Van  Sant.  Eq.   Pr.,  15;  11  How.,  *  Idem,  318,  §  5. 

-'!"'■  *Idem,  318,  as  amended  by  the  act  of 
*  See  ante,  Lis  Pendens,  Vol.  I,  193.  1830,  ch.  320,  §  41. 


PAETITION.  359 

it  should  set  forth  all  the  facts  necessary  to  enable  the 
court  to  understand  the  rights  of  the  parties.  It  is  not 
necessary  to  set  out  the  particular  interest  of  those  who 
are  alleged  as  unknown  owners.  The  general  allegation 
that  there  are  such,  according  to  the  requirements  of  the 
statute,  is  sufficient.^  The  complaint  need  make  no  alle- 
gations in  respect  to  the  interests  of  contingent  remainder- 
men who  are  to  come  into  being  thereafter ;  because  they 
are  virtually  represcDted  by  those  in  whom  the  present 
title  is  vested.'*  The  allegations  in  the  complaint  may  be 
upon  information  and  belief,  and  may  be  verified  or  not  at 
the  option  of  the  i)laintiff.^ 

The  complaint  may  be  amended  for  the  purpose  of 
bringing  in  additional  defendants,  who,  during  the  progress 
of  the  proceedings,  appear  to  have  an  interest  in  the  pre- 
mises, by  will,  deed  or  grant  from  any  original  defendants, 
and  who  might  originally  have  been  made  defendants, 
had  their  interest  then  existed  or  been  known.  Under 
the  statute,  to  do  this,  required  a  forty  days'  notice  of  the 
motiou,*  but  under  the  Code  the  notice  will  be  the  same 
Eis  is  required  in  other  cases.^ 

If  there  are  any  minor  defendants,  it  will  be  necessary 
to  have  guardians  ad  litem  appointed  for  them,  before  the 
plaintitf  can  make  apjjlication  for  judgment.  The  guar- 
dian may  be  appointed  either  on  the  application  of  the 
plaintitf  or  on  the  application  of  the  infant  himself  if  he 
be  above  the  age  of  fourteen  years ;  or  if  he  be  under  that 
age,  on  the  application  of  some  relative  or  Iriend. 

The  appoiiUment  of  guardian  ad  litem  for  infant  defendants  upon 
the  application  of  the  plaintiff . 

The  statute  provides  that  if  it  shall  be  represented  to  the 
court  by  any  party  intending  to  institute  proceedings  for 
partition,  that  there  are  any  minors  who  should  be  made 
parties  to  the  proceedings  thereon,  and  it  shall  be  satis- 
factorily proved  to  the  court,  that  at  least  ten  days'  notice 
has  been  served  on  such  minors,  as  reside  within  the  state, 
or  upon  their  general  guardians,  of  an  intention  to  apply 
to  such  court^for  the  order  herein  mentioned,  such  court 
shall  thereupon  appoint  a  suitable  and  disinterested  person 


'  See  23  Barb.,  303.  *  2  R.  S.,  320,  §  21. 

«  17  N.  Y.,  210.  *  2  Abb.  15. 

'  2  Van  Sant.  Eq.  Pr.,  19. 


360  ADMINISTRATION   OF   CIYIIi  JUSTICE. 

to  be  guardian  for  one  or  more  of  such  minors,  whether 
the  said  minors  shall  reside  in  or  out  of  this  state,  for  the 
special  purpose  of  taking  charge  of  the  interests  of  such 
minors  in  relation  to  the  proceedings  for  a  partition.^ 

The  Code  provides  that  in  actions  for  the  partition  of 
real  property  where  an  infant  defendant  resides  out  of  the 
state,  the  plaintiff  may  apply  to  the  court  in  which 
the  action  is  pending,  at  any  special  term  thereof,  and 
will  be  entitled  to  an  order  designating  some  suitable  per- 
son to  be  the  guardian  of  the  infant  defendant,  for  the 
purposes  of  the  action,  unless  the  infant  defendant  or  some 
one  in  his  behalf,  within  a  number  of  days  after  the  service 
of  a  copy  of  the  order,  which  number  of  days  shall  be  in 
said  order  specified,  shall  procure  to  be  appointed  a  guar- 
dian for  the  said  infant ;  and  the  court  shall  give  special 
directions  in  the  order  for  the  manner  of  the  service  there- 
of, which  may  be  upon  the  infant  himself  or  by  service 
upon  any  relative  or  ijerson  with  whom  the  infant  resides, 
and  either  by  mail  or  personally'  upon  the  lierson  so  served.^ 
And  in  case  an  infant  defendant,  having  an  interest  in  the 
event  of  the  action,  reside  in  any  state  with  which  there  is 
not  regular  communication  by  mail,  on  such  fact  being 
made  to  appear  to  the  court,  the  court  may  appoint  a 
guardian  ad  litem  for  such  absent  infant  party,  for  the  pur- 
pose of  protecting  the  rights  of  such  infant  in  said  action  ; 
and  on  such  guardian  ad  litem,  process,  pleadings  and 
notices  in  the  action  may  be  served,  in  the  like  manner  as 
upon  a  party  residing  in  this  state.^ 

An  infant  defendant  has  twenty  days  after  the  service 
of  the  summons  within  which  to  apply  for  the  appointment 
of  a  guardian  ad  litem.  Consequently,  the  plaintiff  must 
wait  twenty  days  after  such  service  of  summons  upon  the 
infant  before  applying  to  the  court  for  the  appointment  of 
such  guardian,  where  the  infant  defendant  is  of  the  age 
of  fourteen  years.  If  the  infant  be  under  the  age  of  four- 
teen years,  the  plaintiff,  having  given  notice  to  the  general 
or  testamentary  guardian  of  such  infant,  if  he  has  one 
within  the  state,  or  if  none,  then  to  the  person  with  whom 
such  infant  resides,  if  he  reside  within  the  state,  may  apply 
at  once  for  such  an  appointment.  The  length  of  the  time 
required  for  such  notice  to  be  served  upon  the  general 
guardian,  &c.,  is,  according  to  the  statute,  ten  days.^    It 

'  2  R.  S.  317.  §  2  ;  2  N.  Y.  S.  at  L.,      '  Code.  §  116. 
326.  «  2  R.  S.,  317,  §  2. 


PAETITION.  361 

would  not  be  safe  to  give  the  ordinary  eight  days'  notice 
of  the  Code,  and  for  greater  caution,  the  ten  days'  notice 
should  be  given. ^ 

The  appointment  is  made  upon  the  petition  of  the  plain- 
tiff, which,  with  the  notice  specifying  the  time  and  place 
of  its  presentation,  is  to  be  served  as  last  above  stated. 
The  petition  must  be  presented  to  the  court  at  special 
term,  and  not  at  chambers,  unless  the  court  at  chambers 
is,  by  law,  deemed  a  special  term  of  the  court.^ 

The  petition  should  specify  the  person  proposed  as  guar- 
dian, and  the  consent  of  the  guardian  to  serve  as  such, 
and  to  give  the  security  required,  should  also  be  written 
or  indorsed  upon  the  petition.  If  the  person  proposed  be 
not  the  general  guardian  of  the  infant,  it  should  appear  in 
the  petition  or  in  accompanying  affidavits,  that  the  person 
proposed  is  one  competent  to  understand  and  protect  the 
rights  of  the  infant,  and  has  no  interest  adverse  to  that  of 
the  infant,  and  is  not  connected  in  business  with  the  attor- 
ney or  counsel  of  the  adverse  party,  and  is  of  sufficient 
ability  to  answer  to  the  infant  for  any  damages  he  might 
sustain  by  his  negligence  or  misconduct  in  the  defense  of 
the  action  f  and  when  no  responsible  person  will  consent 
to  become  guardian  and  give  the  required  security,  the 
petition  should  ask  the  appointment  of  the  clerk  of 
the  court,  who  may  be  appointed  without  giving  security.* 

Granting  the  order,  apiminting  the  guardian.  In  the  case 
of  resident  infant  defendants,  upon  i^roof  of  the  due  ser- 
vice of  the  petition  and  notice,  and  proof  of  the  signature 
of  the  guardian  i3roposed,  to  the  consent  required  to  be 
indorsed  upon  the  i)etition — if  he  be  not  an  attorney  or 
an  officer  of  court,  when  no  such  proof  is  required — and 
upon  the  courts'  being  satisfied  that  the  person  proposed 
is  suitable,  within  the  requirements  of  the  rule,^  the  courts 
will  grant  the  order  appointing  such  person  a  guardian 
ad  litem  for  the  purposes  of  such  suit.  The  order  must 
specify  the  amount  of  security  which  the  guardian  is 
required  to  give,  and  must  be  entered  and  filed  in  the 
usual  way,^  and  the  guardian  thus  appointed,  before  enter- 
ing upon  the  duties  of  said  office,  must  execute  a  bond  in 
such  x^tinalty,  and  with  such  security  as  the  court  shall 

'  See  2  Duer,  635  ;  13  How.,  105.  =  2  Van  Sant.  Eq.  Pr.,  21 ;  see  Rule  60. 

"As   in  the   first  judicial   district;  or  ■»  L.  1813,  311;  4  N.  T.  S.  at  L.,  613. 

where  a  special  term  has  been  ad-  '  Rule  60. 

journed  to  be  held  at  chambers ;  '  2  Van  Sant.  Eq.  Pr.,  22 ;  1  Id.,  453. 

Code,  §  24,  as  amended  in  1862. 
II.— 46 


362  ADMDTISTEATION  OP  CIVrL  JUSTICE. 

direct,  to  the  people  of  the  state,  conditioned  for  the  faith- 
ful discharge  of  his  trust,  and  to  render  a  just  and  true 
account  of  his  guardianship,  which  bond  must  be  filed  in 
the  office  of  the  clerk,  before  any  further  order  is  made.^ 
This  bond  is  to  be  signed  by  the  guardian  and  his  sureties,* 
although  a  defectively  executed  bond,  may,  by  the  consent 
of  the  obligors,  be  amended  by  the  court.^  The  act  of 
1852  provides,  that  in  suits  or  proceedings  for  the  partition 
of  land  properly  instituted,  where  the  guardian  for  minors 
has  entered  upon  the  execution  of  his  duties,  and  rides  and 
orders  have  been  made  without  the  filing  of  the  requisite 
bond,  or  when  it  shall  appear  that  such  bond  cannot  be 
found  on  file,  the  court,  or  any  judge  thereof,  may,  on 
application  of  any  party  to  the  suit  or  proceeding,  at  any 
time  before  judgment  or  decree  in  all  cases,  or  after  judg- 
ment or  decree  in  cases  of  actual  partition,  authorize  and 
direct  the  filing  of  a  bond  by  such  guardian,  and  the 
X)eualty  and  surety  thereof  to  be  filed  as  of  the  same  date 
with  the  order  appointing  the  guardian,  having  the  like 
form  and  etfect  in  every  respect  as  if  such  bond  had  been 
directed  by  the  court  and  duly  executed  and  filed  by  the 
guardian  at  the  date  of  his  appointment/ 

It  has  been  held  that  this  act  applied  only  to  cases  of 
actual  imrtition^  and  not  to  cases  where  a  sale  had  been 
had  ;^  but  the  court  of  appeals  held  the  act  to  be  enabling, 
and  not  a  restrictive  act.  That  the  omission  to  file  the 
bond  was  a  mere  irregularity,  which  was  amendable  ;  and 
that  a  court  having  original  equity  jurisdiction,  had  power 
to  order  such  bond  to  be  filed,  either  before  or  after  sale, 
as  well  as  on  ^^  actual  partition.''^ 

As  already  observed,  the  infant  defendant,  if  over  the 
age  of  fourteen  years,  may  apply  on  his  own  petition  for 
the  appointment  of  a  guardian  ad  litem.  This  application 
should  be  made  within  twenty  days  after  the  service  of 
summons  upon  him.^  If  the  infant  be  under  the  age 
of  fourteen,  such  application  for  the  appointment  of  the 
guardian,  may  be  made  at  any  time  within  twenty  days 
after  the  service  of  summons,  by  some  relation  or  friend 
of  the  infant;^  and  the  subsequent  proceeding  in  the 
appointment  of  such  guardian  will  be  the  same  as  if  he 

'2R.  S.,  317,  §4.  ''2  Abb.,  6. 

'  2  Abb.,  6.  «  17  N.  Y.,  218. 

^  14  How.,  94;  see  L.  1852,  411,  8  3.   '  Code,  §  16.  sub.  2. 
*  L.  1852,  411,  §  3;  4  N.  T.  S.  at  L., 
615,  §  3. 


PAETITION.  363 

was  appointed  on  the  application  of  the  plaiutiflP.  If  the 
infant  defendant  be  a  married  woman,  she  may  appear 
voluutarilj^  even  without  her  husband ;  though  it  is 
important  that  he  be  joined  with  her,  in  order  to  cut  off 
his  possible  interest  in  her  estate  should  she  die  intestate.^ 

The  ansxoer  and  other  pleadings. 

After  the  complaint  has  been  prepared  and  served  upon 
the  defendants,  it  must  be  answered  within  the  rule,  or 
the  defendants  will  be  in  default,  and  the  plaintiff,  having 
procured  the  appointment  of  guardians  ad  litem  for  all 
infant  defendants,  may  proceed  to  take  judgment  on 
such  default.  If  the  facts  set  up  in  the  complaint  are 
true,  and  there  is  no  new  matter  to  be  alleged  in  avoid- 
ance, then,  no  answer  will  be  required.  Such  is  the  case 
even  where  a  guardian  ad  litem  has  been  appointed.  He 
need  not  put  in  a  general  answer,  simply  submitting  the 
rights  of  the  infant  to  the  court,  where  all  the  facts  are 
correctly  stated  in  the  comi)laint,  and  no  opposition  is 
intended  to  be  made.  But  if  the  facts  stated  in  the  com- 
plaint, or  any  of  them  which  are  material,  are  untrue,  the 
defendant  must  answer  by  denying  the  same  as  in  other 
civil  actions.  In  short,  the  rules  applicable  to  an  answer, 
as  discussed  in  the  first  volume  of  this  work,  are  applica- 
ble in  actions  for  partition.^ 

Any  party  appearing  may  plead  either  separately  or 
jointly  with  one  or  more  of  his  codefendants,  that  the 
X)laintiffs,  or  any  of  them,  were  not  in  possession  of  the 
premises  in  question,  or  any  part  thereof;  or  that  the  de- 
fendants, or  any  of  them,  did  not  hold  the  premises  with 
the  x>laintiflEs  at  the  time  of  the  commencement  of  the  pro- 
ceedings as  alleged  in  the  complaint ;  or  may  plead  any 
other  matter,  showing  that  the  plaintiff  is  not  entitled  to 
maintain  his  said  action.^ 

Other  and  further  pleadings  may  also  be  had  between 
the  parties  respectively,  according  to  the  practice  of  the 
court,  as  in  i)ersonal  actions,  until  an  issue  or  issues  of 
law  and  of  fact  are  joined  between  the  parties  or  some 
of  them,*  and  whenever  joint  tenancy  or  tenancy  in  com- 
mon of  any  defendant  shall  be  denied  by  a  codefendant, 
and  it  shall  become  necessary  to  determine  the  same  in 


'  5  Abb.,  54.  '  4  How.,  125. 

»  Vol.  I,  368.  *  2iR.  S.,  320,  §§  IG,  17. 


364  ADMimSTKATION    OF  CIYTL  JUSTICE. 

order  to  effect  a  complete  and  final  partition  so  far  as  the 
rights  of  the  parties  are  concerned,  the  court  may  direct 
an  issue  to  be  formed  on  the  record,  and  may  direct  the 
jury  to  inquire  into,  try  and  determine,  as  well  the  tenancy 
of  the  defendant  so  denied,  as  the  other  issues  joined  on 
such  pleadings.^ 

If  the  defendants  fail  to  appear  and  plead  they  will  be 
liable  to  a  judgment  on  default,  and  the  plaintiff  will  be 
entitled  to  the  legal  relief  asked  for,  as  in  other  civil  actions. 
Where  there  are  issues  as  to  one  or  more  of  the  defendants, 
and  failure  to  answer  as  to  the  rest,  the  trial  of  the  issues 
may  be  brought  on  before  the  court  in  the  usual  manner, 
and  at  the  same  time,  on  notice  to  the  defendants  who 
appear,  but  do  not  answer,  and  the  proof  requisite  in  case 
of  default  must  be  presented  to  the  court  so  that  the  de- 
cision of  the  court  upon  the  issues,  being  rendered,  one 
general  order  may  be  made  determining  such  issues,  and 
directing  the  proper  reference  under  the  rules  and  statute 
as  to  all  the  defendants.^  And  the  issues  of  fact  must  first 
be  disposed  of  before  further  steps  can  be  taken  against 
those  making  default.  After  the  verdict  has  been  rendered 
for  the  plaintiff'  on  these  issues,  a  motion  is  made  for  the 
relief  demanded  in  the  complaint  against  all  the  defend- 
ants, as  well  those  embraced  in  the  issue  tried,  as  the  others 
making  default.^ 

Wliere  none  of  the  defendants  appear  to  demur  or  answer, 
the  plaintiff,  at  the  expiration  of  the  time  for  answering, 
applies  to  the  court  for  the  relief  demanded  in  the  com- 
Ijlaiut,  which  is  a  judgment  of  partition.  This  judgment 
will  be  given,  as  a  matter  of  course,  on  the  plaintiff's  prov- 
ing his  title  in  the  premises  as  required  by  the  statute.* 
This  proof  may  be  made  in  open  court,^  or  a  reference  may 
be  ordered  to  take  proof  of  title  and  report  upon  the  same, 
with  an  abstract  of  the  conveyances  by  which  it  is  held.'' 
The  title  required  to  be  established,  is  such  as  would  entitle 
the  party  to  recover  in  ejectment,'^  and  should  be  traced 
back  to  a  common  source.^ 

To  entitle  the  plaintiff'  to  judgment,  in  addition  to  the 
above,  he  should  prove  service  upon  all  the  defendants. 


'  Idem,  §  18.  '2  Paige,  27,  28. 

'  2  Van  Sant.  Eq.  Pr.,  27.  «  2  Van  Sant.  Eq.  Pr.,  28. 

'  Idem.  '2  Paige,  27,  28. 

*  2  R.  S.,  321,  §  23;  8  How.,  456;  2     «  8  Paige,  513. 
Abb.,  15. 


PARTITION.  365 

that  no  answer  or  demurer  has  been  received,  and  he  should 
produce  affidavits  showing  that  none  of  the  defendants  are 
infants.* 

A  reference  ordered. 

Where  the  rights  and  interests  of  the  several  parties,  as 
stated  in  the  complaint,  are  not  denied  or  controverted,  if 
any  of  the  defendants  are  infants  or  absentees,  or  unknown, 
the  plaintiff,  on  affidavit  of  the  fact,  and  notice  to  such  of 
the  parties  as  have  appeared,  may  apply  at  a  special  term 
for  an  order  of  reference  to  take  proof  of  the  plaintilf' s  title 
and  interest  in  the  premises,  and  of  the  several  matters  set 
forth  in  the  bill  or  petition ;  and  to  ascertain  the  rights  and 
interests  of  the  several  parties  in  the  premises,  and  an 
abstract  of  the  conveyances  by  which  the  same  are  held.^ 
The  order  of  reference  in  such  case,  must  direct  the  referee 
to  take  proof  of  the  title  of  the  plaintiff,  and  of  the  several 
matters  set  forth  in  the  complaint;  and  to  ascertain  and 
report  particularly  what  share  or  part  of  the  premises  be- 
longs to  each  of  the  parties  to  the  suit,  so  far  as  the  same 
can  be  ascertained;  and  the  nature  and  extent  of  their 
respective  estates  or  interests  therein;  and  that  he  also 
report  such  proof,  and  an  abstract  of  the  conveyances  by 
which  the  title  to  the  i)remises  is  held.^ 

It  is  further  provided  by  rule  that  where  the  whole 
premises  of  which  partition  is  sought,  are  so  circumstanced 
that  a  partition  thereof  cannot  be  made  without  great  pre- 
judice to  the  owners,  due  regard  being  had  to  the  power 
of  the  court  to  decree  compensation  to  be  made  for  equality 
of  partition,  and  to  the  ability  of  the  respective  parties  to 
pay  a  reasonable  compensation  to  produce  such  equalitj^ 
or  where  any  lot  or  separate  parcel  of  the  premises,  which 
will  exceed  in  value  the  share  to  which  either  of  the 
tenants  in  common  may  be  entitled,  is  so  circumstanced, 
the  xjlaintiff,  upon  stating  the  fact  in  the  affidavit  which  is 
to  be  filed  for  the  purpose  of  obtaining  an  order  of  reference 
under  the  next  preceding  rule,  may  have  a  further  provision 
inserted  in  such  order  of  reference,  directing  the  officer  or 
person  to  whom  it  is  referred,  to  inquire  and  report  whether 
the  whole  premises,  or  any  lot  or  separate  parcel  thereof, 
are  so  circumstanced  that  an  actual  partition  cannot  be 

•  2  Van  Sant.  Eq.  Pr.,  28.  '  2  Paige,  29 ;  2  Barb.  Ch.  Pr.,  296. 

"  Rule  78,  of  1858  ;  2  R.  S.,  321,  §  23  ; 
8  Paige,  513. 


366  ADMmiSTRATION  OF  CIVIL  JUSTICE. 

made ;  and  that  if  lie  arrives  at  the  conclusion  that  the 
sale  of  the  whole  premises,  or  of  any  lot  or  separate  parcel 
thereof,  will  be  necessary,  that  he  specify  the  same  in  his 
report,  together  with  the  reasons  which  render  a  sale  neces- 
sary ;  and,  in  snch  a  case,  that  he  also  ascertain  and  report 
whether  any  creditor,  not  a  party  to  the  suit,  has  a  specific 
lien,  by  mortgage,  devise,  or  otherwise,  upon  the  undivided 
share  or  interest  of  any  of  the  parties  in  that  portion  of  the 
premises  which  it  is  necessary  to  sell ;  and  if  he  finds  that 
there  is  no  such  specific  lien  in  favor  of  any  person  not  a 
party  to  the  suit,  that  he  further  inquire  and  report  whether 
the  undivided  share  or  interest  of  any  of  the  parties  in  the 
premises  is  subject  to  a  general  lien  or  incumbrance,  by 
judgment  or  decree ;  and  that  he  ascertain  and  report  the 
amount  due  to  any  party  to  the  suit  who  has  either  a  gen- 
eral or  specific  lien  on  the  premises  to  be  sold,  or  any  part 
thereof,  and  the  amount  due  to  any  creditor,  not  a  party, 
who  has  a  general  lien  on  any  undivided  share  or  interest 
therein,  by  judgment  or  decree,  and  who  shall  appear  and 
establish  his  claim  on  such  reference.  He  shall  also,  if 
requested  by  the  parties  who  appear  before  him  on  such 
reference,  ascertain  and  report  the  amount  due  to  any 
creditor,^  not  a  party  to  the  suit,  which  is  either  a  specific 
or  general  lieu  or  incumbrance  upon  all  the  shares  or  in- 
terests of  the  parties  in  the  premises  to  be  sold,  and  which 
would  remain  as  an  incumbrance  thereon  in  the  hands  of 
the  purchaser;  to  the  end  that  such  directions  may  be 
given  in  relation  to  the  same,  in  the  decree  for  the  sale  of 
the  premises,  as  shall  be  most  beneficial  to  all  the  i^arties 
interested  in  the  proceeds  thereof  on  such  sale.^ 

The  proceedings  upon  the  reference  are  governed  by  the 
ordinary  rules  applicable  to  references  in  other  equity  cases.* 
The  plain tifi"  will  be  required  to  produce  abstracts,  and 
trace  back  his  title  as  tenant  in  common  in  the  premises 
to  the  common  source  of  the  title  of  all  the  tenants  in 
common  therein.^ 

The  report  of  the  referee  should  give  an  abstract  of  the 
conveyances  of  the  several  undivided  shares  or  interests 
of  the  parties  in  the  premises,  from  the  time  the  several 
shares  were  united  in  their  common  source.  This  abstract 
should  be  annexed  to  the  report  and  be  filed  with  it;  and 


'  Rule  79,  Sup.  Ct.,  1858.  »  7  Paige   39 

"  2  Van  Saut.  Eq.  Pr.,  29;  Id.,  522. 


PABTITION.  367 

also  the  proof  taken,  except  sncli  as  is  clocnmentary,  in 
accordance  with  the  order.'  Which  report  may  be  excepted 
to  and  reviewed  as  in  other  cases. 

The  hearing. 

The  report  of  the  referee  having  been  made  and  filed 
with  the  clerk  of  the  court,  notice  thereof  must  be  given 
to  the  parties  who  have  appeared,  according  to  the  rule,^ 
when  the  cause  can  be  brought  to  a  hearing  as  in  other 
cases.  The  court  will  have  before  it,  the  report  of  the 
testimony  as  taken  by  the  referee ;  the  confessions  of 
the  parties  by  plea,  if  any  have  been  made  in  respect 
thereto  f  and  in  case  any  issue  of  fact  has  been  tried 
by  a  jury,  the  verdict  of  the  jury  thereon ;  and  upon  these 
it  will  ascertain  and  declare  the  rights,  titles  and  interests 
of  the  parties  to  the  jjroceedings,  so  far  as  the  same  shall 
appear,  and  will  determine  the  rights  of  the  parties  there- 
to, and  decree  that  i)artition  be  made  between  them,  or 
such  of  them  as  shall  have  any  right  therein,  according 
to  such  rights.*  This  judgment  or  decree  is  merelj^  inter- 
locutory,^ the  final  judgment  for  partition  being  rendered 
on  the  coming  in  of  the  report  of  the  commissioners  mak- 
ing the  partition.^ 

The  judgment  or  order  for  partition. 

The  statute  provides  that  if,  after  the  trial  of  any  such 
issues  or  after  judgment  by  default,  confession  or  other- 
wise, against  those  parties  who  are  known,  the  part  or 
interest  of  any  parties  who  shall  not  have  pleaded  in  the 
cause,  whether  known  or  unknown,  in  and  to  such  pre- 
mises, shall  not  have  appeared  by  the  evidence  in  the 
cause,  then  the  said  court  shall  give  judgment  that  parti- 
tion be  made  so  far  as  the  rights  or  interests  of  the  parties 
who  are  known  and  who  have  appeared  in  the  said  cause, 
have  been  ascertained,  and  the  residue  of  the  premises 
shall  remain  for  the  parties  whose  interests  have  not  been 
ascertained,  subject  to  division  between  them  at  any  future 
time.'  And  the  parts  or  shares  remaining  undivided  must 
be  designated  in  the  decree  thus  rendered.^ 


»  2  Van  Sant,  Eq.  Pr.,  29.  '  2  Van  Sant.  Eq.  Pr.,  39. 

«  Rule  32.  ""l  R.  S.,  321,  §  24;  2  N.  T.  S.  at  L., 

'  21  Barb.,  9.  330. 

♦  2  R.  S.,  321,  §§  23,  24.  '  Idem,  §  25. 

»  See  6  N.  Y.,  465. 


368  ADMTNTSTRATION  OF  CIVIL  JUSTICE. 

The  amendments  of  1847^  provide,  that  in  suits  for  the 
partition  of  lands,  tenements  or  hereditaments,  an  actual 
partition  or  sale,  as  the  case  may  require,  may  be  adjudged 
or  decreed,  whenever  and  as  often  as  the  court  shall  have 
ascertained  and  declared  so  many  facts  concerning  the 
rights,  titles  and  interests  of  all  or  any  of  the  parties  to 
such  suit,  that  a  fair  and  just  partition  or  distribution  of 
proceeds  can  be  made  by  assigning  to  any  party  or  parties 
in  severalty,  and  to  any  set  or  sets  of  parties  in  common, 
according  to  the  provisions  of  this  act,=^  the  shares  in  the 
premises  belonging  to  such  parties  and  sets  of  parties 
respectively,  or  of  the  proceeds  of  the  sales  of  the  said 
shares  of  such  parties  and  sets  of  parties  respectively.^* 

The  amendatory  statute  of  1847  further  provides,  that 
when  it  shall  seem  proper  to  the  court  that  a  partition  or 
sale  should  be  decreed,  shares  of  the  premises  or  proceeds 
as  to  which  there  are  conflicting  claims  not  affecting  other 
shares  in  such  premises  or  proceeds,  may  temporarily  be 
set  off  as  in  common,  to  such  adverse  claimants,  with  a 
proper  reservation  of  their  rights,  until  such  claims  can  be 
determined  upon  further  proceedings  between  them.* 

The  same  act  provides  further,  that  whenever  in  any  suit 
for  the  partition  of  any  lands,  tenements  or  hereditaments, 
it  shall  appear  to  the  court  that  two  or  more  persons  inter- 
ested in  such  lands,  &c.,  are  desirous  of  enjoying  their 
several  shares  or  interests  in  common  with  each  other,  the 
court  may  direct  a  jjartition  to  be  made  in  such  a  manner 
as  to  set  off  to  such  of  the  parties  as  shall  desire  it,  their 
shares  respectively  of  such  lands,  &c.,  and  shall  permit 
such  shares  or  interests  to  remain  without  partition  to  be 
enjoyed  by  them  in  common.^ 

The  judgment  which  the  court  is  called  upon  to  pro- 
nounce at  this  stage  of  the  proceeding,  has,  for  its  object, 
the  determination  of  the  question  whether  the  plaintiff  is 
entitled  to  have  partition,  and,  also,  the  definition  of  the 
rights  of  the  several  parties,  so  far  as  they  are  made  to 
appear.  Thus  the  judgment  or  order  of  the  court  must 
declare  the  rights,  titles  and  interests  of  parties  to  such 
proceedings,  plaintiffs  as  well  as  defendants,  so  far  as  the 
same  shall  have  appeared.  "  As  that  the  plaintiff  and  " 
certain  of  the  defendants — naming  them — "  were  severally 

'  Laws  1847,  556,  ch.  430 ;  4  N.  T.  S.     '  Idem,  §  1. 

at  L.,  613.  *  Idem,  §  2. 

» Idem,  §§  1,  2.  » Idem,  §  4. 


PAETITION.  369 

seised  of,  and  entitled  to,"  the  lands  in  question,  "  as  ten- 
ants in  common  thereof,  in  fee  simple,  subject  to  the 
several  rights  and  interests  of  the  other  parties  as  stated 
in  the  report  of  the  referee."  "That"  three  of  the  defend- 
ants— naming  them — "  are  severally  entitled  to  annuities, 
amounting  to  "  a  certain  sum — specifying  it — "  during  the 
life  of  each,  payable  out  of  the  rents,  issues  and  profits  of 
the  premises,  and  that  the  plaintiff  and"  several  of  the 
defendants — naming  them — "  were  entitled  to  the  surplus 
of  the  rents  and  profits  after  the  payment  theretrom  of 
the  several  life  annuities  during  the  lives  of  the  annuitants, 
and  the  life  of  the  longest  liver  of  them" — specifying  the 
proportion  of  such  surplus  to  which  each  was  entitled,  &c.,^ 
and  that  partition  be  made  between  such  of  them  as  have 
any  right  therein,  according  to  such  rights.^ 

This  order  or  judgment  of  partition  should  be  drawn  up 
with  great  care  and  particularity,  omitting  nothing  neces- 
sary to  be  stated  to  guide  the  commissioners  in  the  dis- 
charge of  their  duties.  After  having  thus  ascertained  and 
adjudged  what  are  the  respective  interests  and  rights  of 
the  parties,  and  ordered  that  partition  be  made,  the  court 
next  proceeds  to  appoint  commissioners  to  make  the  parti- 
tion so  adjudged. 

Tlie  appointment  of  the  cominis$io7iers  and  their  duties. 

The  statute  provides  that  whenever  any  judgment  of  par- 
tition has  been  rendered,  the  court,  by  rule,  must  appoint 
three  reputable  freeholders,  commissioners  to  make  the  par- 
tition so  adjudged,  according  to  the  respective  rights  and 
interests  of  the  parties,  as  the  same  were  ascertained 
and  determined  by  such  court ;  and  in  such  rule  the  court 
must  designate  the  i)art  or  shares  which  are  to  remain 
undivided,  for  the  owners  whose  interests  are  unknown, 
and  not  ascertained.^  And  it  should  also  designate  whose 
shares,  if  any,  are  to  remain  without  partition,  that  they 
may  be  enjoyed  by  them  in  common.*  The  same  order 
adjudging  partition,  and  defining  the  rights,  interests,  &c., 
of  the  parties,  usually  appoints  the  commissioners,  and 
gives  them  their  i)articular  instructions. 

If  the  commissioners  so  appointed,  or  any  of  them,  die, 


'  See  15  N.  T.,  618.  *  L.  1847,  557,  §  4 ;  4  N.  Y.  S.   at  L., 

"  2  R.  S.,  321,  §  23.  613. 

»  2  R.  S.,  321,  §  25 ;  2  N.  T.  S.  atL.,  331. 

II.— 47 


370  ADMDnSTRATION   OF   CIVIL  JUSTICE. 

resign  or  neglect  to  serve,  the  court  is  authorized,  from 
time  to  time,  to  appoint  others  in  their  j)laces.^ 

These  commissioners,  before  proceeding  to  the  execution 
of  their  duties,  are  each  required  to  be  sworn  or  aflQrmed 
before  an  officer  authorized  to  take  affidavits,  honestly  and 
impartially  to  execute  the  trust  reposed  in  them,  and  to 
make  partition,  as  directed  by  the  court;  and  the  oath 
thus  taken  must  be  filed  with  the  clerk  of  the  court,  at  or 
before  the  coming  in  of  their  report.^ 

They  then  proceed  immediately  to  take  measures  to 
make  partition  according  to  the  judgment  of  the  coiu"t, 
unless  it  appear  to  them  or  any  two  of  them,  that  such 
partition  cannot  be  made,  without  great  prejudice  to  the 
owners  thereof;  in  which  case,  they  make  a  return  of  such 
fact,  in  writing  to  the  court  signing  the  same.^ 

But  in  case  partition  can  be  justly  made,  they  proceed 
to  divide  the  real  estate,  and  allot  the  several  portions 
and  shares  thereof  to  the  respective  parties,  quality  and 
quantitj^  relatively  considered  by  them,  according  to  the 
respective  rights  and  interests  of  the  parties,  as  adjudged 
by  the  court,  designating  the  several  shares  and  portions 
by  posts,  stones  or  other  x)ermanent  monuments  ;  employ- 
ing a  surveyor,  and  other  assistants  when  necessary  to  aid 
them." 

Before  proceeding  to  make  actual  partition  of  the  pre- 
mises, the  parties  interested  should  be  notified  of  the 
proceedings  in  making  such  partition.  The  statute  is 
silent  upon  this  subject,  yet,  nevertheless,  the  proceedings 
are  in  the  nature  of  an  adjudication  of  an  oflicial  character, 
affecting  the  rights  and  interests  of  the  parties,  and  they 
have  a  right  to  a  beneficial  and  substantial  notice,  which,  if 
not  given,  the  report  of  the  commissioners  will  be  set 
aside  on  motion  as  being  irregular.^  It  is  said  that  the 
correct  x)ractice  is,  for  the  attorney  conducting  the  pro- 
ceedings, to  give  notice  to  such  parties  as  have  appeared 
in  the  action,  to  attend  with  the  commissioners  at  the 
time  and  place  specified,  to  make  partition  of  the  premises; 
and  the  report  of  the  commissioners  should  show  such 
notice  to  have  been  given.^ 

The  statute  of  1847^  provides,  that  whenever  the  estate 


'2R.S.,  321,§26;  2  N.  T.  S.  at  L.,  331.  »^9How.,  69. 

"  Idem,  5  27.  «  2  Van  Sant.  Eq.  Pr.,  44. 

'  Idem,  §  28.  ''  L.  1847,.ch.  430,  557,  §  5;  4  K  Y.  S. 

*  Idem,  §  29.  at  L.,  613. 


PARTITION.  371 

of  any  tenant  in  dower,  or  by  the  curtesy,  or  for  life,  to 
the  whole  or  any  part  or  share  of  the  premises,  has  been 
admitted  by  the  parties,  or  ascertained  by  the  court  to  be 
existing-  at  the  time  of  the  judgment  of  partition,  and 
such  tenant  has  been  made  party  to  the  proceedings,  the 
commissioners  may  allot  to  such  tenant  his  share  thereof, 
without  reference  to  the  duration  of  such  estate ;  and  also 
may  make  partition  of  such  share,  and  allot  the  same  to 
the  parties  respectively  who  are  entitled  to  the  remainder 
thereof,  according  to  their  respective  rights  therein,  when- 
ever, in  their  opinion,  it  can  be  done  without  prejudice  to 
the  rights  of  the  parties.' 

The  effect  of  this  provision  taken  in  connection  with 
the  others,  is,  "  that  when  there  is  a  tenant  for  life  of  the 
entirety,  and  the  remainder  is  held  in  tenancy  in  common, 
by  several,  these  tenants  in  common  may  institute  proceed- 
ings, being  seised  within  the  meaning  of  the  statute,  and 
the  estate  for  life  continuing  until  judgment,  partition  is 
to  be  made  by  leaving  to  the  tenant  for  life,  his  estate 
untouched,  and  dividing  the  lands  among  those  entitled 
to  the  remainder.  But  if  the  life  estate  be  owned  by  joint 
tenants,  or  tenants  in  common,  in  different  shares  from 
those  into  which  the  estate  in  remainder  is  to  be  divided, 
then  a  double  partition  is  to  be  made,  first,  among  the 
tenants  for  life,  and  then  among  the  owners  in  remainder, 
and  if  the  premises  are  so  situated  that  partition  cannot 
be  made,  the  courts  must  consider  and  determine  whether, 
under  all  the  circumstances  of  the  case,  the  life  estate 
shall  l)e  excluded  from  the  sale,  and  the  remainder  alone 
be  sold.  In  determining  this,  the  court  must  have  regard 
to  the  interest  of  all  the  parties.^ 

The  commissioners,  in  the  exercise  of  their  duties,  are 
limited  to  the  powers  conferred  upon  them  in  the  order 
appointing  them,  and  assigning  to  them  their  duties.  If, 
therefore,  by  mistake  or  otherwise,  they  extend  their  action 
to  lands  not  described  in  the  proceedings,  their  proceed- 
ings will  be  void,  as  well  as  any  judgment  rendered  by 
the  court  upon  their  report.^ 

These  commissioners  are  appointed  to  execute  the  order 
or  judgment  of  the  court  upon  the  premises  in  such  a 
manner  as  to  do  justice  to  all  parties  in  interest.  The 
order  or  judgment  of  the  court  ascertains  and  determines 

'  Idem  ;  15  N.  Y.,  626.  =  21  Barb.,  9. 

'  15  N.  Y.,  026,  per  Denio,  C.  J. 


372  ADMINISTRATION   OF   CIVIL  JUSTICE. 

the  interest  of  tlie  parties,  the  office  of  the  commissioners 
is  to  make  a  just  application  of  the  same  to  the  premises 
in  question.  They  must  necessarily  be  intrusted  with  a 
large  discretion  in  the  exercise  of  their  duties,  as  such 
commissioners.  They  are  not  bound  to  subdivide  the 
several  parcels  of  land  among  the  several  parties,  but,  if 
they  think  proper,  they  may  allot  a  distinct  parcel  to  each 
party,  making  compensation  when  any  inequality  exists 
thereby.^  They  may  also  make  partition  by  allotting  a 
portion  of  the  premises  charged  with  an  easement,  and 
make  all  necessary  provisions  for  keeping  in  repair  a  use, 
not  capable  of  actual  division.^ 

The  execution  of  the  duties  of  their  office  will  often 
require  that  they  be  informed  of  matters  aliunde  the  judg- 
ment and  order  appointing  them,  hence,  they  must  have 
authority  to  examine  witnesses,  whose  testimony  should 
be  reduced  to  writing,  and  be  returned  with  their  report.^ 
This  power  is,  however,  supplementary,  to  enable  them 
the  better  to  perform  their  duties,  and  will  not  excuse 
them  from  acting  upon  their  own  x)ersonal  observation. 

In  the  performance  of  their  duties,  they  must  meet 
together,  although  the  acts  of  the  majority,  when  met,  are 
valid.*  They  must  also  make  a  full  report  of  their  proceed- 
ings, under  the  hands  of  at  least  two  of  them,  specifying 
therein  the  manner  of  executing  their  trust,  and  describing 
the  laud  divided,  and  the  shares  allotted  to  each  party, 
with  the  quantity,  courses  and  distances  of  each  share,  and 
a  description  of  the  posts,  stones  or  other  monuments 
thereof,  and  also  the  items  of  their  charges.^ 

The  report  should  show  the  entire  doings  of  the  com- 
missioners ;  that  they  all  met  and  acted  together,  in  the 
performance  of  every  of  their  duties ;  and,  when  onlj'  two 
unite  in  the  report,  it  shoukl  set  forth  the  reason  why  it  is 
not  signed  by  all.^  The  report  must  be  such  in  every 
respect,  as  to  enable  the  court  to  pronounce  a  complete 
and  final  judgment.  It  must  be  proved  or  acknowledged 
before  some  officer  authorized  to  take  the  proof  of  deeds, 
and  in  the  same  manner  as  such  proof  is  taken  ;  and  it  must 
be  hied  in  the  office  of  the  clerk  of  the  proper  county.' 

When  there  has  been  any  irregularitj'  on  the  part  of 
the  commissioners  affecting*  the  interests  of  the  parties,  or 

'  2  Paige,  29 ;  2  Barb.  CL  Pr.,  299.  ■•  2  R.  S.,  322,  §  31. 

»  10  Paige,  470.  '  Idem,  §  30. 

»  2  Van  Sant.  Eq.  Pr.,  45 ;  2  Barb.  Ch.  *  See  §  31 ;  1  Barb.  CL  Pr.,  73. 

Pr.,  300.  '  Idem,  §  33. 


PAETITION".  373 

if  they  have  exceeded  their  authority,  or  acted  fraudulently 
or  unfairly,  their  report  may  be  set  aside  on  the  motion  of 
the  irdYtY  dissatisfied  therewith,  on  the  usual  notice.  This 
motion  to  set  aside  the  report,  the  court  may  grant  when- 
ever the  cause  is  such  as  would  lead  them  to  set  aside  a 
verdict  of  the  jury,  and  grant  a  new  trial.  The  statute 
says,  on  "  good  cause  shown,"  the  report  may  be  set  aside, 
and  new  commissioners  be  appointed,  as  often  as  neces- 
sary.^ When  the  report  is  set  aside  for  a  mere  irregularity 
or  unintentional  omission  to  perform  some  duty,  such  as 
failing  to  give  notice  to  the  parties,  or  to  take  the  oath 
required  bj'  law,  the  commissioners  will  not  be  removed. 
But  if  the  report  be  set  aside  for  misconduct  of  the  com- 
missioners, new  ones  should  be  appointed.  When  the 
same  commissioners  are  retained,  after  setting  aside  their 
report,  they  proceed  a  second  time  to  execute  the  order 
for  partition.  Any  mere  formal  inaccuracy  in  their  report 
may  be  amended.^ 

Fitial  judgment  upon  actual  partition. 

After  the  commissioners  have  made  theu'  report  setting 
forth  the  actual  partition  made  according  to  the  require- 
ments of  the  statute,  and  have  filed  the  same,  the  next 
step  is  to  bring  it  on  for  final  hearing  and  judgment,  or 
for  such  further  directions  as  may  be  necessary.  It  is 
brought  to  hearing  on  motion,  at  special  term,  and  on  the 
usual  notice.  If  there  appear  to  be  no  objections  to 
the  report,  it  will  be  confirmed  by  order,  and  final  judg- 
ment will  be  rendered  thereon  that  the  partition  made  by 
the  commissioners  be  firm  and  effectual  forever.^ 

After  the  report  of  the  commissioners  has  been  confirmed 
by  the  court,  and  judgment  thereupon  has  been  given  that 
such  partition  be  firm  and  effectual  forever,  such  judgment 
becomes  binding  and  conclusive  :  1.  On  all  parties  named 
therein,  and  their  legal  representatives,  who  shall,  at  the 
time,  have  any  interest  in  the  premises  divided,  as  owners 
in  fee  or  as  tenants  for  years,  or  as  entitled  to  the  rever- 
sion, remainder  or  inheritance  of  such  premises  after  the 
termination  of  anj^  particular  estate  therein ;  or  who,  by 
any  contingency  contained  in  anj^  will  or  grant,  or  otlier- 
wise,  may  be,  or  may  become,  entitled  to  any  beneficial 
interest  therein,  or  who  shall  have  any  interest  in  any 

"  2  R.  S.,  322,  §  34.  '2  R.  S.,  322,  §  36. 

"  1  My.  &  Keen.,  334;  2  Barb.  Ch.  Pr., 
301. 


374  ADMINISTEATION  OF  CIVIL  JUSTICE. 

imdivided  share  of  the  premises,  as  tenant  for  years,  for 
life,  by  the  curtesy,  or  in  dower;  2.  On  all  persons  interested 
in  the  premises  who  may  be  unknown,  to  whom  notice 
shall  have  been  given  of  the  application  for  partition,  by 
publication  as  directed  by  statute  in  such  cases ;  and,  3.  On 
all  other  persons  claiming  from  such  parties,  or  persons,  or 
either  of  them.^ 

Prior  to  the  act  of  1847,^  such  judgment  did  not  affect 
tenants  in  dower,  by  the  curtesy  or  for  life.^  But  since 
that  act,  such  rights  and  interests  may  be  determined 
by  such  proceedings,  in  wliich  case  they  are  also  bound  by 
such  judgment.  Any  other  persons  than  those  above 
named,  including  tenants  in  dower,  by  the  curtesy  and  for 
life,  or  persons  having  such  claims,  are  precluded  from 
claiming  any  title  in  the  premises,  or  from  controverting 
the  title  or  interest  of  the  parties  between  whom  such  par- 
tition is  made.* 

This  judgment  should  specify  in  detail  the  divisions 
actually  made  by  the  commissioners,  with  a  description  in 
severalty  of  the  premises  allotted  to  each  of  the  respective 
parties.  It  should  also  apportion  the  costs  among  the 
several  parties  in  proi)ortion  to  their  respective  interests, 
and  should  adjudge  their  payment  from  each  party  defend- 
ant respectively,  to  the  plaintiff.  Every  ascertained  interest 
is  liable  to  be  taxed  with  its  proportion  of  the  costs,  where 
the  claimant  has  been  made  a  party,  as  the  share  of  a 
doweress.^  So,  where  any  share  is  subject  to  a  lien  by 
judgment,  it  is  first  chargeable  to  its  proportion  of  costs 
in  preference  to  such  lien.*^ 

If  compensation  for  equality  of  partition  be  allowed  by 
the  commissioners,  this  judgment  should  set  it  forth,  both 
as  to  amount  and  the  share  upon  which  it  is  charged,  and 
its  payment  to  the  other  parties  adjudged  ;  and  thereupon 
such  amount  becomes  a  specific  lien  upon  the  share  against 
which  it  is  charged,  and  entitled  to  preference  in  payment."  * 

*  It  is  provided  that  an  exemplification  of  any  judgment  record  or  decree  in  par- 
tition may  be  recorded  in  the  office  of  tlie  clerk  of  any  county  of  this  state  in 
which  any  lands  described  therein  may  be  situated,  and  tliat  such  record,  or  an 
exemplification  thereof,  shall  be  received  in  evidence  and  be  as  effectual  in  all 
cases  as  the  original  exemplification  would  be  if  produced,  and  likewise  open  to  the 
same  objections.  L.  18-16,  204 ;  4  N.  Y.  S.  at  L.,  433. 

'  2  R.  S.,  322,  §  35 ;  2  N.  Y.  S.  at  L.,  *  Idem. 

332.  s  1  Barb.,  560;  3  Johns.  Ch.  R.,  302. 

"  L.  1847,  557 ;  4  N.  Y.  S.  at  L.,   614,  «  2  R.  S..  318,  §§  8,  9. 

§  5.  '2  Van  Sant.  Eq.  Pr.,  51 :  2  Barb.  CL 
'  2  R.  S.,  323,  §  36.  R.,  301. 


PARTITION.  375 

The  judgment  is  perfected  by  making  up  and  filing  a 
proper  record  of  the  proceedings ;  but  it  is  binding  iii)on 
tlie  parties  from  tlie  date  of  the  confirmation  of  the  com- 
missioners' report.^  So  far  as  such  judgment  is  to  bind 
unknown  owners,  it  must  appear  upon  the  face  of  the 
record  that  the  affidavit  required  by  the  statute,  of  the  plain- 
tiffs' ignorance  of  the  names,  rights,  &c.,  of  such  owners, 
are  duly  x>resented  to  the  court,  and  that  the  required 
notice  was  also  duly  i)ub]ished.^  An  omission  to  have 
these  facts  appear  would  render  such  judgment  voidable, 
though  not  absolutely  void.^ 

JReport  of  comiuissioners  that  the  land  cannot  he  partitioned^  etc. 

If  the  commissioners  report  that  the  lands,  &c.,  are  so 
situated  that  they  cannot  be  partitioned  without  great 
prejudice  to  the  owners  of  the  same,  and  if  the  court  are 
satisfied  that  such  report  is  just  and  correct,  the  court, 
upon  the  filing  of  such  report,  by  rule  to  be  then  entered, 
may  order  the  commissioners  to  sell  the  premises  so  situ- 
ated, at  public  auction,  to  the  highest  bidder."  And,  in 
such  order,  the  court  must  direct  the  terms  of  credit  which 
may  be  allowed  for  any  portion  of  the  purchase-money  of 
which  it  shall  think  proper  to  direct  the  investment,  and 
also,  of  such  portions  of  the  purchase-money  as  are  required 
by  the  statute  in  respect  thereto^  to  be  invested  for  the 
benefit  of  unknown  owners,  infants,  parties  out  of  the  state, 
tenants  for  life,  in  dower  or  by  the  curtesy,  and  such  por- 
tions of  the  purchase-money  must  always  be  secured  at 
interest  by  a  mortgage  of  the  premises  sold,  by  a  bond  of 
the  purchaser,  and  by  such  other  security  as  the  court  may 
prescribe.'^ 

The  commissioners  are  also  authorized  by  statute  to  take 
separate  mortgages  and  other  securities  for  such  convenient 
shares  or  portions  of  the  purchase-money,  as  are  directed 
by  the  court  to  be  invested  as  above,  in  the  name  of  the 
clerk  of  the  court  and  his  successors  in  office,  or  of  any  one 
of  such  clerks,  and  for  such  shares  as  any  known  owner  of 
full  age  shall  desire  to  have  so  invested,  in  the  names 
of  such  owners." 

To  enable  the  court  to  determine  whether  a  sale  of  the 


'  9  Barb.,  500.  '  Idem,  326,  §  54. 

^  11  Wend.,  648.  °  Idem,  fcjg  38,  39. 

=  2  Hill,  625.  '  Idem,  §  40 ;  N.  Y.  S.  at  L.,  333. 

*  Idem,  §  37. 


376  ADMINISTRATION  OF  CIVIL  JUSTICE. 

premises  or  any  part  thereof  is  necessary,  the  report  of  the 
commissioners  should  set  forth  the  facts  and  circumstances 
upon  whicli  the  opinions  of  the  commissioners  are  based,^ 
and  the  court  will  not  decree  a  sale  upon  such  report  of 
the  commissioners,  where  a  referee  appointed  in  the  case 
has  reported  that  a  partition  can  be  made.^  Where  the 
situation  of  the  property  or  the  rights  of  the  parties  have 
materially  changed  subsequent  to  the  report  of  the  referee, 
thereby  rendering  a  partition  impossible  without  prejudice 
to  the  rights  of  the  parties,  a  special  application  for  a  new 
reference  should  be  made  to  the  court,  for  the  purpose  of 
ascertaining  such  facts.^ 

If  there  are  creditors  having  specific  liens  who  have  not 
been  made  i)arties  to  this  action,  the  court,  before  making 
any  order  for  the  sale  of  the  said  premises,  and  on  motion 
of  either  party,  must  direct  the  plaintiff  to  amend  his  com- 
Ijlaint,  b}'  making  every  such  creditor  having  any  specific 
lien  on  the  undivided  interest  or  estate  of  any  of  the  parties, 
by  mortgage,  devise,  or  otherwise,  a  ijarty  to  such  action ; 
and  the  court  must  also  direct  the  clerk  to  ascertain  and 
report  whether  the  shares  or  interest  on  the  premises  of  the 
parties  in  such  suit,  or  any  of  them,  are  subject  to  any 
general  lien  or  incumbrance  by  judgment  or  decree.*  And 
the  clerk  to  whom  such  reference  is  made  must  immedi- 
ately thereafter  cause  notice  to  be  published  once  in  each 
week,  for  six  weeks  successively,  in  the  state  paper,  and 
also  in  a  uewsijaper  printed  in  every  county  in  which  any 
of  the  lands  in  cpiestion  are  situated,  requiring  all  persons 
having  any  general  lien  or  incumbrance  on  any  undivided 
interest  or  share  therein,  by  judgment  or  decree,  to  produce 
to  the  said  clerk  on  or  before  a  certain  day  to  be  named 
in  such  notice,  proof  of  all  such  liens  or  iucumbrances, 
together  with  satisfactory  evidence  of  the  amount  due 
thereon  ;  and  the  clerk  must  report,  with  all  convenient 
speed,  the  names  of  the  creditors,  the  nature  of  the  in- 
cumbrances, the  dates  thereof,  and  the  several  amounts 
ai^pearing  to  be  due  thereon.^ 

When  it  appears  by  the  proceedings  or  report  that  there 
are  existing  incumbrances  upon  the  estate  or  interest  in 

M9  Wend.,  226.  ^  See  Rule  79. 

'  5  Paige,  161 ;   2  Van  Sant.  Eq.  Pr.,  47. 

*  2  R.  S.,  324,  §  42 ;  2  N.  T.  S.  at  L.,  333  ;  This  sale  may  be  ordered  without 
a  reference  to  the  clerk  to  search  for  liens  and  incumbrances,  imless  such  reference 
is  asked  for  by  one  of  the  parties.  12  Wend.,  2G9:  but  see  4  Paige,  481. 

'  Idem,  §  43. 


PAETITION.  377 

the  premises  of  any  of  the  parties  named,  in  the  suit,  or 
proceedings,  the  court  must,  in  the  order  for  sale,  direct 
the  commissioners  to  bring  into  court,  and  pay  to  the  clerk 
thereof,  the  portion  of  the  moneys  arising  from  the  sale  of 
the  estate  or  interest  of  such  party,  after  deducting  the  por- 
tion of  the  costs,  charges  and  expenses  to  which  "the  same 
is  liable.^ 

The  party  whose  share  is  thus  incumbered,  however, 
may  apply  to  the  court  to  order  such  moneys,  or  such  part 
thereof  as  he  claims  to  be  his,  to  be  paid  to  him. 

His  application  must  be  accompanied :  1.  By  his  own  affi- 
davit, stating  the  amount  actually  due  on  each  incumbrance, 
the  owner  of  such  incumbrance,  and  his  residence,  as  far 
as  it  is  known  to  such  partj' ;  2.  By  proof,  by  affidavit,  of  the 
due  service  of  a  notice  on  each  owner  of  any  incumbrance, 
of  the  intention  to  make  such  application,  at  least  fourteen 
days  previously.  And  if  such  owner  of  the  incumbrance 
reside  within  the  state,  such  notice  must  be  served  person- 
ally ;  or,  when  he  is  absent  from  his  residence,  by  leaving 
a  copy  there  with  some  one  of  proper  age.  If  such  owner 
resides  out  of  the  state,  such  notice  may  be  served  on  him 
personally  twenty  dajs  previously,  or  by  publishing  the 
same  in  the  state  paper  four  weeks  successively,  once  in 
each  week.^ 

The  court  will  hear  such  application  on  proof  of  notice 
having  been  given  according  to  the  above  requirements; 
and  any  questions  of  fact  arising,  which,  in  the  opinion  of 
the  court,  require  the  deliberation  and  finding  of  a  jury, 
and  issue  will  be  awarded  and  a  trial  be  ordered,  the  costs 
to  be  i^aid  by  the  failing  party,  to  be  enforced  if  necessary 
by  attachment.^ 

When  the  amount  of  such  existing  incumbrances  have 
been  ascertained,  the  court  is  then  required  to  order  a  dis- 
tribution of  the  moneys  thus  brought  into  court,  and  there 
remaining,  among  the  several  creditors  having  such  incum- 
brances, according  to  the  jDriority  thereof  respectively,' 
and  the  clerk  or  officer  by  whom  such  incumbrances  are 
paid  off,  is  required  to  procure  satisfaction  of  the  same  to 
be  acknowledged,  in  the  form  required  by  law,  and  to 
cause  such  incumbrance  to  be  duly  satisfied  or  canceled 
of  record,  and  defray  the  expenses  thereof  out  of  the  por- 


'  Idem,  §  44. 

»  2  R.  S.,  324,  §  45  ;    Subs.,  1,  2;  2  N.  T.  S.  at  L.,  334. 

'  Idem,  §  46. 


n.— 48 


378  ADMINISTEATION  OF  CIVIL  JUSTICE. 

tloii  of  the  moneys  in  coiu*t  belonging  to  the  party  by 
whom  such  incumbrance  was  payable.^  These  proceedings 
are  not  to  interfere  with  or  affect  any  other  party  in  such 
suit ;  nor  to  delay  paying  over  or  investing  moneys  to  or 
for  the  benefit  of  any  party  upon  whose  estate  in  the  pre- 
mises there  is  no  apparent  incumbrance.^ 

The  order  for  sale  hy  the  commissioners.  Care  should  be 
taken  by  the  attorney  prosecuting  the  proceeding  or  action 
for  partition,  that  the  order  for  sale  contain  every  essential 
requisite  imposed  by  the  statute.  It  should  make  provi- 
sions for  the  distribution  of  the  net  proceeds  of  the  sale, 
for  the  investment  or  other  disposition  of  the  shares  of 
infants,  of  unknown  and  absent  owners,  and  of  tenants  in 
dower  or  for  life ;  the  payment  of  costs,  &c.  And  there 
are  special  requirements  which  may  or  may  not  be  neces- 
sary to  be  made,  according  to  circumstances.  Thus,  it 
may  be  necessary  to  direct  the  commissioners  to  bring  the 
money  arising  from  the  sale,  &c.,  into  court,  and  pay  the 
same  to  the  clerk  f  and  the  court  may  have  occasion  to 
direct  the  terms  of  credit  which  may  be  allowed  for  any 
portion  of  the  purchase-money  of  which  it  thinks  proper  to 
direct  the  investment,  &C.'' 

The  proceedings  hy  tJie  commissioners  under  such  order. 

Before  the  commissioners  can  proceed  to  sell  the  pre- 
mises, or  any  part  thereof,  they  must  give  notice  of  the 
sale,  for  the  same  length  of  time  and  in  the  same  manner, 
as  is  required  by  law  on  sales  of  real  estate  hy  sheriffs  on 
executions.^  The  terms  of  such  sale  must  be  made  known 
at  the  time ;  and  where  the  premises  consist  of  distinct 
buildings,  farms  or  lots,  they  must  be  sold  separately.* 
Neither  of  the  commissioners,  nor  any  person  for  the 
benefit  of  either  of  them,  must  be  interested  in  the  pur- 
chase, nor  directly  or  indirectly  purchase  any  of  the 
premises  sold,  nor  must  any  guardian  of  any  infant  party 
in  such  suit,  purchase,  or  be  interested  in  the  purchase  of 
any  lands  being  the  subject  of  such  suit,  except  for  the 
benefit  or  in  behalf  of  such  infant ;  and  all  sales  contrary 
to  these  prohibitions  are  void." 

After  completing  such  sale,  the  commissioners  report 

'Idem,  §48.  336,  §  56;  22  Barb.,  171;  arife,  p. 

»  Idem,  §  50.  55. 

^  2  R.  S.,  324,  §  44.  •  Idem,  §  57. 

«  See  3  R.  S.,  323,  §§  38,  39 ;  see  2  R.  S.  '  Idem,  §  58  ;  22  Barb.,  171. 

'  2  R.  S.,  327,  §  56;  2  N.  T.  S.  at  L., 


PARTITION.  379 

the  same  to  the  court  on  their  oath,  with  a  description  of 
the  ditferent  parcels  of  land  sold  to  each  purchaser,  the 
name  of  such  purchaser  and  the  price  bid  bj'  him ;  and 
such  report  must  be  filed  in  the  court, ^  and  if  such  sales  be 
confirmed  by  the  court,  an  order  must  be  entered  directing 
the  commissioners,  or  any  two  of  them,  to  execute  convey- 
ances pursuant  to  such  sales ;  which  they  are  by  statute 
authorized  to  do,^  and  such  conveyances  must  be  recorded 
in  the  county  where  the  premises  are  situated ;  and  they 
there  became  a  bar,  both  in  law  and  equity,  against  all 
persons  interested  in  such  premises  in  any  way,  who  have 
been  named  as  parties  in  the  said  proceedings ;  and  also, 
against  all  such  persons  and  parties  as  were  unknown ; 
when  notice  had  been  duly  given  by  publication,  of  the 
application  for  partition ;  and  also,  against  all  other  per- 
sons claiming  under  such  parties.^  It  is  not  necessary 
that  parties  unknown  should  have  actual  notice  of  the 
partition  or  sale ;  when  notice  has  been  published  accord- 
ing to  the  requirements  ol  the  statute,  everything  has 
been  done  to  give  them  notice  which  the  nature  of  the 
case  will  allow,  and  that  is  suflicient  to  bind  them  by  such 
proceedings.* 

Such  conveyances  also  become  a  bar  against  all  persons 
having  general  liens  or  incumbrances  by  judgment  or 
decree,  on  any  undivided  share  or  interest  in  the  premises 
sold,  in  all  cases,  where  the  jiroper  notice  to  the  creditors 
has  been  given, ^  and  also  against  all  persons  having 
specific  liens  on  any  undivided  share  or  interest  therein, 
and  who  have  been  made  parties  to  the  action ;  but  not 
otherwise.*^ 

Costs  to  he  deducted. 

The  costs  and  expenses  of  the  proceedings  must  be 
deducted  from  the  proceeds  of  every  sale  thus  made  by 
the  commissioners ;  and  they  must  pay  them  over  to  the 
petitioners  or  their  attorney^  After  which  the  proceeds 
must  be  divided  among  the  parties  whose  rights  and 
interests  have  been  sold,  in  proportion  to  their  several 
shares  or  interests  in  the  premises  ;  and  the  shares  of  those 
who  are  of  age  must  be  paid  to  them  or  their  legal  repre- 

>  Idem,  §  59.  '2  R.  S,  324;  §  43,  ante. 

*  Idem,  g  GO.  *  Idem,  §  327,  §  61  (b.) ;  2  N.  Y.  S.  at 
^  Idem,  §  61  (a.);  17  N.  Y.,  217.  L.,  337 ;  4  Taige,  432;  3  Id.,  65G. 

*  Mead  v.  Mitchel,  17  N.  Y.,  210,  217.  '  Idem,  §  62. 


380  ADIMINISTEATION  OF   CIVIL  JUSTICE. 

sentatives,  by  the  commissioners,  or  be  brought  into 
court,  for  their  use.^ 

Where  any  of  the  hioivn  parties  are  infants,  the  court 
may,  in  its  discretion,  direct  the  share  of  such  infant  to  be 
paid  over  to  the  general  guardian,  or  to  be  invested  in 
permanent  securities  at  interest,  in  the  name,  and  for  the 
benefit  of  such  infant.^ 

Absent  or  unhioivn.  When  any  of  the  parties  whose 
interests  have  been  sold,  are  absent  from  the  state,  with- 
out legal  representatives  in  this  state,  or  where  they  are 
not  known  or  named  in  the  proceedings,  the  court  is 
requhed  to  direct  their  shares  to  be  invested  in  perma- 
nent securities  at  interest,  for  the  benefit  of  such  parties, 
until  claimed  by  them,  or  by  their  legal  representatives.' 

When  the  proceeds  of  the  sale  belonging  to  any  tenant 
in  dower,  or  by  the  curtesy,  or  for  life,  are  brought  into 
court,  as  directed  by  statute,*  the  court  is  required  to 
direct  the  same  to  be  invested  in  permanent  securities  at 
interest,  so  that  such  interest  shall  annually  be  paid  to  the 
parties  entitled  to  such  estates,  during  their  lives  respec- 
tively.^ 

For  the  purpose  of  protecting  the  rights  of  those  really 
entitled,  the  court,  in  its  discretion,  may  require  all  or  any 
of  the  parties,  before  receiving  their  share  of  the  moneys 
arising  from  such  sale,  to  give  security  to  the  satisfaction 
of  such  court,  to  refund  the  said  share,  with  interest  there- 
on, in  case  it  shall  thereafter  appear  that  such  party  was 
not  entitled  to  the  money .^ 

In  whose  name  such  security  to  he  taken,  or  investments  to 
he  made.  Security  thus  to  be  taken  by  the  court,  or  any 
security  to  be  taken  by  the  commissioners,  on  the  sale  of 
real  estate  by  them,  or  on  investments  to  be  made  by  them, 
under  these  provisions,  must  be  taken  in  the  name  of  the 
clerk  of  the  court,  and  his  successor  in  oifice,  except  where 
they  are  required  to  be  taken  in  the  name  of  a  known 
owner,"  and  the  clerk  and  his  successor  in  otfice  are  to  hold 
the  bonds,  mortgages  or  other  evidences  thereof,  in  virtue 
of  their  respective  ofiices.^ 

After  the  sale,  the  order  to  execute  the  conveyances 
must  be  made  before  such  conveyances  can  be  executed  ; 

'  Idem,  §  63;  4  Paige,  443.  "  Idem,  §  65;  16  Barb.,  531. 

""  Idem,  §  64.  « Idem,  §  67. 

=  Idem,  §  65.  '  Idem,  g§  38,  40. 

*  idem,  325,  §§  50,  51,  52.  « Idem.  |g  41,  68;  16  Barb.,  534. 


PABTITIOX.  381 

and  the  order  should  also  contain  a  direction  that  the  com- 
missioners make  a  final  rei)ort  of  all  their  doings  under 
such  order,  which  rejiort  must  be  filed  and  confirmed  by 
order  of  the  court.^ 

Proceedings  for  sale  of  irremises  hy  referee. 

The  proceedings  in  partition  when  the  premises  must  be 
sold  to  etfect  a  partition  or  division  between  the  parties 
and  owners,  are  the  same  as  in  cases  where  actual  parti- 
tion of  the  premises  can  be  made  until  the  application  for 
an  order  of  reference  as  to  title,  under  the  seventy-eighth 
rule.  These  proceedings  are  founded  upon  the  statute,'^ 
which  provides  that  instead  of  appointing  commissioners 
in  the  first  instance  to  make  partition,  if  it  appear  by  the 
report  of  a  master,  or  otherwise,  that  the  premises  or  any 
part  of  them  are  so  circumstanced  that  a  partition  thereof 
cannot  be  made  without  great  prejudice  to  the  ow' uers,  the 
court  may  order  a  sale  of  such  premises  at  public  auction, 
by  one  of  the  masters,  uj)on  the  same  notice  as  hereinbe- 
fore directed  in  sales  by  commissioners,  which  sales  are  to 
be  made  in  the  same  manner.  And  on  the  rejiort  of  the 
master  being  confirmed,  he  is  to  execute  conveyances  to 
the  purchasers  at  such  sales,  which  are  to  have  the  same 
effect  as  if  executed  by  commissioners  according  to  the 
provisions  of  the  statute  in  such  cases.^ 

The  seventy-ninth  rule  provides  that  the  necessity  of 
sale  is  to  be  suggested  to  the  court  by  the  plaintift^'s  afii- 
davit  on  his  application  for  a  reference.  The  referee  takes 
the  place  of  a  master  under  the  statute.  The  rule  provides 
that  when  the  plaintiff's  affidavit  to  procure  such  order, 
states  that  the  whole  prelnises,  of  which  partition  is  sought, 
are  so  circumstanced  that  a  partition  thereof  cannot  be 
made  without  great  i^rejudice  to  the  owners,  due  regard 
being  had  to  the  power  of  the  court  to  decree  compensa- 
tion, and  to  the  ability  of  the  respective  parties  to  pay  a 
reasonable  compensation  to  produce  such  equality,  or  that 
some  lot  or  separate  parcel  of  the  premises  which  will 
exceed  in  value  the  share  to  which  either  of  the  tenants  in 
common  may  be  entitled,  is  so  circumstanced  that  parti- 
tion cannot  be  made,  &c.,  that  the  court  may  then  insert 
in  the  order  of  reference  a  further  direction,  that  the  olficer 
or  XJerson  to  whom  it  is  referred  to  inquire  and  report 

'  2  Van  Sant.  Eq.  Pr.,  50.  *  2  R.  S.,  330,  §  81. 


382  ADMIKISTKATION  OF   CIVIL  JUSTICE. 

■whether  the  whole,  or  any  lot  or  separate  part  thereof  are 
so  circumstanced  that  actual  partition  cannot  be  made,  and 
that  if  he  tinds  it  so,  and  that  a  sale  of  the  whole  ijre- 
ujises  or  any  part  thereof  will  be  necessary,  that  he  specify 
the  same  in  his  report,  together  with  the  reasons  which 
render  a  sale  necessary,  and,  in  such  case,  that  he  also 
ascertain  and  report  whether  any  creditor,  not  a  party  to 
the  suit,  has  a  specific  lien  by  mortgage,  devise  or  other- 
wise, upon  the  undivided  share  or  interest  of  any  of  the 
parties  in  that  portion  of  the  premises  necessary  to  be 
sold  ;  and  finding  no  such  lien,  that  he  farther  iuquire  and 
report,  whether  the  unchvided  share,  or  any  interest  of  any 
of  the  parties  in  the  premises  is  subject  to  a  general  lien 
or  incumbrance,  by  judgment  or  decree ;  and  that  he  ascer- 
tain and  report  the  amount  due  to  any  ijarty  to  the  suit, 
who  has  either  a  general  or  specific  lien  on  the  premises  to 
be  sold,  or  any  part  thereof,  and  the  amount  due  to  any 
creditor,  not  a  party,  who  has  a  general  lien  or  any  undi- 
vided share  or  interest  therein,  by  judgment  or  decree,  and 
who  shall  appear  and  establish  his  claim  on  such  reference. 

The  affidavit  calling  for  this  addition  to  the  order  of 
reference  must  be  filed  with  the  other  papers  used  upon 
the  application  for  the  order  of  reference,  to  entitle  the 
plain titf  to  such  additional  order. 

Such  order  being  made,  the  question  for  the  referee  to 
consider,  after  having  ascertained  the  rights  of  the  par- 
ties in  the  premises,  is,  whether  the  premises  or  any  part 
of  them,  are  so  situated  or  circumstanced,  that  a  partition 
cannot  be  made,  without  gTeat  prejudice  to  the  owners 
thereof.  He  is  to  inquire  whether  a  sale  is  necessary.  In 
determining  this,  the  questiou  is,-  whether  the  whole  pro- 
perty taken  togetlrer  will  be  greatly  injured  and  diminished 
in  value  by  separating  into  several  parts,  and  placing  it  in 
the  hands  of  several  distinct  owners  ?  AYhether  the  aggre- 
gate value  of  the  several  parcels  into  which  the  whole 
premises  must  be  divided  will,  when  distributed,  be  mate- 
rially less  than  the  value  of  the  same  property  if  owned  by 
one  person.^ 

If  the  referee  comes  to  the  conclusion  that  a  sale  will  be 
necessary,  and  that  he  must  so  report,  &c.,  he  is  next  to 
inquire  whether  any  creditor,  not  a  party  to  the  suit,  has  a 
specific  lien  by  mortgage,  devise,  or  otherwise,  upon  any 


*  9  Paige,  541 ;  10  Paige,  470;  2  Barb.,  599. 


PARTITION.  383 

portion  of  the  premises  necessary  to  be  sold.  This  require- 
ment is  in  pursuance  of  the  statute,^  which  makes  it  the 
duty  of  tlie  court  to  dh-ect  the  clerk  to  ascertain  and  report 
on  the  subject  of  liens,  &c.,  where  the  commissioners  have 
reported  a  sale  necessary.^  But  under  the  rule^  the  referee 
is  required  to  look  into  this  matter.  It  was  formerly  held 
that  this  reference  was  necessary,  and  could  not  be  dis- 
pensed with  in  any  case.*  A  ditferent  view,  however,  has 
since  been  taken  on  that  subject.  It  has  been  held  that 
where  neither  party  moved  for  such  reference,  its  omission 
did  not  atfect  the  validity  of  the  judgment  or  sale,^  and 
Judge  Mitchell  subsequently  held'^  that  the  reference  and 
advertisement  were  only  intended  as  a  means  of  cutting 
off  certain  general  liens.  If  there  were  none  such,  there 
was  no  use  of  the  advertisement ;  and  if  the  parties  to  the 
suit  knew  there  were  none,  there  was  no  reason  whj-  they 
should  be  subjected  to  the  expense  and  delay  of  a  reference 
for  that  purpose,  and  advertisement.  If  the  advertisement 
were  omitted,  and  there  were  such  liens  in  fact,  the  pur- 
chaser, on  examining  the  title,  would  discover  them,  and 
decline  to  take  the  title  until  the  liens  were  discharged, 
and  so  no  one  would  be  injured. 

The  judge  remarked  further,  that  it  would  be  a  dangerous 
and  extraordinary  decision  to  hold  that  the  decree  of  sale 
was  a  nullity  where  there  was  no  advertisement,  when  it 
should  appear  that  no  one  could  possibly  be  injured  thereby, 
and  that,  in  fact,  there  were  no  such  creditors  by  judgment 
or  decree.  That,  however,  as  judgments  and  decrees  do 
not  cease  to  be  liens  as  against  heirs-at-law  at  the  end  of 
ten  years,  the  parties  to  the  suit  who  omit  this  ordinary 
advertisement,  should  be  required  to  produce,  at  their  own 
costs,  regular  searches  for  all  judgments  and  decrees  for  at 
least  twenty  years.' 

The  practitioner,  however,  should  never  omit  this  farther 
reference  and  advertisement  in  every  case  where  there  is  a 
reference  as  to  the  necessity  of  a  sale.  As  a  question  of 
regularity  and  practice,  the  rule  is  absolute ;  and  the  court 
would  undoubtedly  require  a  compliance  therewith  before 
giving  judgment  for  sale.**  Although,  if  from  the  pleadings 
and  proof,  it  appear  to  the  court  that  the  premises  are  in- 

»  2  R.  S.,  324,  §  43.  •  10  How.,  188. 

"  Idem,  §  37.    ''  '  Idem,  188;  see  also  26  Barb.,  475;  5 

=  Rule  79.  Abb.,  453. 

*  4  Paige,  481.  "2  Van  Sant.  Eq.  Pr.,  34. 

'  12  Wend.,  269. 


384  ABMINISTEATION   OF   CIVIL  JUSTICE. 

capable  of  partition,  a  reference  to  ascertain  such  fact 
would  be  unnecessary,  and  the  court  might  adjudge  the 
sale  of  the  premises  without  such  reference.^  In  such 
case,  the  parties,  if  they  choose,  can  omit  the  reference  as 
to  liens  ;  and  if  there  are  liens  the  purchaser  can  refuse  to 
take  the  title.' 

The  proceedings  upon  the  reference  are  governed  by  the 
rules  applicable  to  reference  in  other  cases.  The  plaintiff 
should  be  required  to  produce  abstracts  and  trace  back  his 
title  as  a  tenant  in  common  in  the  premises,  to  the  common 
source  of  all  the  tenants  in  common,^  and  his  proceedings 
should  in  all  respects  conform  to  the  proceedings  where 
actual  partition  is  sought,  under  rule  seventy-eight,  in 
addition  to  his  proceedings  under  the  reference  for  sale, 
under  rule  seventy-nine. 

The  referee,  under  the  statute*  and  the  above  rule,^  to 
whom  the  above  reference  is  made,  must  immediately 
cause  to  be  pubhshed  in  the  state  i)aper,  once  in  a  week 
for  six  weeks  successively,  and  also  in  a  newspaper  printed 
in  every  county  in  which  any  of  the  lands  in  question  are 
situated,  a  notice  requiring  all  persons  having  any  general 
lien  or  incumbrance  on  any  undivided  interest  or  share 
therein,  b}'  judgment  or  decree,  to  produce  to  the  said 
referee,  on  or  before  a  certain  day,  to  be  named  in  said 
notice,  proof  of  all  such  liens  or  incumbrances,  and  the 
amounts  due  thereon,  and  tbat  they  specify  the  nature  of 
said  incumbrances,  and  the  dates  thereof,  and  such  notice 
should  also  contain  a  description  of  the  land  or  premises 
in  question.^ 

The  referee  should  exercise  great  vigilance  in  determin- 
ing whether  any  liens  exists  upon  the  premises  or  upon 
the  share  of  each  party  therein.  He  should  require  the 
records  to  be  searched  in  the  same  manner  as  if  he  were 
examining  title.  The  referee  may  require  an  abstract  of 
title  to  be  laid  before  him.  He  should  also  be  furnished 
with  affidavits  as  to  deaths,  descents,  intestacy,  &c.,  to 
enable  him  to  ascertain  in  whom  the  estate,  or  any  part 
thereof,  is  or  has  been  vested ;  and  he  should  summon 
before  him  such  persons  as  he  ascertains  to  be  creditors 
having  liens,  and  obtain  from  them  the  facts." 


» 4  Paige,  336.  '  Rule  79. 

'  10  How.,  188.  "  2  R.  S.,  324,  §  43. 

^  7  Paige,  39.  ''  Edw.  Ref.,  457  ;  2  Hoff.  Pr.,  184. 

♦  2  R.  S.,  321,  &c.,  §§  43,  84. 


PARTITION.  385' 

The  statute  requires  the  referee  to  make  the  investiga- 
tion with  all  convenient  speed,  and  report  the  names  of 
the  creditors,  the  nature  of  the  incumbrances,  the  dates 
thereof,  and  the  several  amounts  appearing  to  be  due 
thereon.^  Having  made  the  necessary  investigations  and 
satisfied  himself  as  to  the  facts  in  the  case  coming  within 
the  scope  of  his  inquiries  under  the  order  of  reference,  his 
next  step  in  the  proceeding  is  to  make  his  report. 

Report  of  the  referee.  Having  completed  the  inquiries 
directed  by  the  order  of  reference,  he  makes  up  his  report 
and  annexes  thereto  the  abstract  of  title,  or  he  embodies 
it  in  his  report,  and  also  appends  the  testimony  taken.  In 
his  report  he  recites  the  order  under  which  he  has  acted 
as  referee,  the  appearance  of  the  attorneys  and  parties 
before  him,  the  publication  of  notice  as  required  by  law, 
and  the  substance  thereof.  He  also  includes  in  his  report 
all  his  findings,  particularly  and  specifically  ;  the  legal 
estate  and  interest  of  the  several  parties  in  the  premises, 
specifying  each  separately  and  accurately ;  he  must  also 
certify  and  report  that  the  premises  described  are  so  cir- 
cumstanced that  they  cannot,  in  his  opinion,  be  partitioned 
without  great  injury  and  prejudice  to  the  owner  thereof, 
stating  the  reasons  for  such  opinion ;  also  certifying  that 
he  has  caused  the  necessary  searches  to  be  made ;  finding 
creditors  not  parties  to  the  action,  naming  them,  and  set- 
ting forth  a  description  of  their  claims,  &c.,  and  that  none 
others  than  those  named  appeared  before  him  on  said  refer- 
ence to  establish  his  claim  in  pursuance  of  the  notice,  &c. 

One  of  the  objects  of  this  reference  under  this  rule^  is, 
to  enable  the  court  to  distribute  the  purchase-money  in 
a  proper  manner.  Therefore,  when  the  referee  reports 
against  the  claim  of  any  person  having  a  lien  by  judgment 
or  decree,  upon  the  share  of  any  of  the  parties,  the  claim- 
ant should  except  to  the  report  in  due  season,  in  order  to 
preserve  his  lien  upon  the  purchase-money,  which,  by  the 
statute,  becomes  a  substitute  for  the  land.^ 

Should  the  death  of  any  of  the  parties  to  the  partition 
suit  require  new  parties  to  be  brought  in,  upon  the  revival 
of  the  suit,  a  new  reference  would  be  required  in  order  to 
ascertain  the  rights  of  the  new  parties,  before  a  sale  could 
be  decreed. 

Judgment  for  sale  and  distribution.  The  requisites  of  a 

»  2  R.  S.,  324,  §  43.  '  Edw  Ref.,  4G1  ;  2  Barb.  Ch.  Pr.,  307 ; 

»  Rule  79  Sup.  Ct.  4  Paige,  441, 

n.— 49 


386  ADMINISTRATION   OF   CIVIL  JUSTICE. 

judgmeut  for  sale  and  distribution  have  already  been  con- 
sidered, when  the  proceedings  were  conducted  by  commis- 
sioners under  the  statute.  They  would  be  the  same  under 
these  proceedings.^ 

Sale  hy  the  referee.  The  notice  of  sale  required  to  be 
given,  is  the  same  as  that  required  by  law  on  sales  of  real 
estate  by  sheriffs  on  execution.^  That  notice  is,  by  statute' 
to  be  as  follows :  "  The  time  and  place  of  holding  any  sale 
of  real  estate  pursuant  to  any  execution,  shall  be  publicly 
advertised,  previously,  for  six  weeks  successively  as  fol- 
lows: 1.  A  written  or  printed  notice  thereof  shall  be 
fastened  up  in  three  public  places  in  the  town  where  such 
real  estate  is  to  be  sold,  and  if  such  sale  be  in  a  town, 
different  from  that  in  which  the  premises  are  situated,  then 
such  notice  must  also  be  fastened  up  in  three  public  places 
of  the  town  in  which  the  premises  are  situated  ;  2.  A  copy 
of  such  notice  must  be  printed  once  in  each  week  in  a 
newspaper  in  such  county  if  there  be  one  ;  3.  And  if  there 
be  no  newspaper  printed  in  such  county,  and  the  premises 
to  be  sold  are  not  occupied  by  any  person  against  whom 
the  execution  is  issued,  or  by  some  person  holding  the 
same  as  tenant  or  i)urchaser  under  such  person,  then  such 
notice  must  be  published  in  the  state  paper  once  in  each 
week.*  And  in  every  such  notice  the  real  estate  to  be 
sold,  must  be  described  with  common  certainty,  by  setting 
forth  the  name  of  the  township,  or  tract,  and  the  number 
of  the  lot,  if  there  be  any,  and  if  there  be  none,  then  by 
some  other  appropriate  description.* 

The  law  applicable  to  the  sale  of  real  estate  on  execu- 
tion, is  applicable  to  the  sale  under  the  proceedings  for 
partition.  This  has  been  fully  considered  in  the  preceding 
pages  of  this  volume,^  to  which  reference  is  made. 

The  provision  that  the  notice  of  sale  of  lands  in  parti- 
tion shall  be  for  the  same  time  and  in  the  same  manner  as 
required  on  sale  by  a  sheriff  on  execution,  necessarily 
implies,  that  in  every  case  where  omission  to  give  notice 
of  sale,  or  an  irregular  notice,  will  not  invalidate  a  sale 
by  a  sheriff,  a  like  omission  or  irregularity  will  not  invali- 
date a  sale  in  partition.' 


*  For  the  requisites  of  stich  a  judo^ment  '  Idem,  369,  §  34. 

order,  reference  is  made  to  the  forms  *  2  R.  S.,  369,  §  34. 

in  Edwards  on  referees,  pp.  463-  '  Idem,  §  35. 

475.  •  Ante,  55,  et  ,ieq. 

*  2  R.  S.,  326,  §  56.  '  22  Barb.,  167. 


PARTITION.  387 

The  title  of  the  cause  need  not  necessarily  be  inserted 
in  the  notice  of  sale,  although  it  is  better  that  it  should 
be.  This  may  be  done  by  stating  the  name  of  the  first 
plaintiff,  when  there  are  several,  and  then  adding  the 
words  "  and  others ;"  and  also  the  name  of  the  first 
defendant,  adding  thereto  the  same  words.  This  is  done 
for  the  i)urpose  of  calling  the  attention  of  persons  interested 
to  the  notice.^ 

The  statute  provides  that  the  terms  of  the  sale  shall  be 
made  known  at  the  time  the  land  is  offered  for  sale.^  This 
is  done  by  annexing  to  a  copy  of  the  advertisement,  a 
statement  that  the  premises  described  therein,  will  be 
sold  under  the  direction  of  the  referee,  upon  the  follow- 
ing terms,  specifying  them.  And  when  the  premises 
consist  of  distinct  buildings,  lots  or  farms,  they  must  be 
sold  separately.'* 

The  statute  prohibits  the  referee  or  any  person  for  his 
benefit,  to  become  a  purchaser  of  the  premises,  or  to  be 
interested  in  the  purchase.^ 

After  the  sale  is  made,  the  referee  appends  to  the  notice 
and  terms  of  sale,  a  memorandum  of  the  purchase  and 
sale;  the  memorandum  of  i^urchase  acknowledging  the 
purchase  of  the  premises  upon  the  annexed  terms,  and 
agreeing  to  comply  therewith,  is  to  be  signed  by  the  pur- 
chaser, and  the  memorandum  of  sale,  and  the  receipt  of 
the  same  payable  in  hand,  signed  by  the  referee. 

When  the  terms  of  sale  reserve  to  the  referee  the  right 
to  consider  the  bidding  open  until  the  deposit  is  paid,  no 
sale  can  be  enforced  when  the  purchaser  refuses  to  pay 
the  deposit,  or  sign  the  acknowledgment;  and  in  case  of 
such  refusal,  no  order  for  a  resale  will  be  necessary.  la 
such  case  the  referee  will  proceed  to  sell  again  as  no  sale 
had  taken  place.* 

Report  of  sale.  The  next  step  is  for  the  referee  to  make 
a  report  of  the  sale.  In  this  report  he  states  fully  his  pro- 
ceedings under  the  order  of  sale.  He  should  show  in  such 
report,  that  he  has  fully  complied  with  the  requirements  of 
the  order,  and  all  the  provisions  of  the  statute  in  reference 
thereto.  Thus,  he  should  state  the  title  of  the  cause  ;  refer 
to,  and  identify  the  order  under  which  he  has  acted  ;  show 
that  he  published,  according  to  law,  the  requisite  notice  of 


'  6  Paige,  489.  '  Idem,  §  58,  cmte. 

»  2  R.  S.,  326,  §  57.  *  3  Edw.  Cli.,  338. 


388  ADMINISTRATION  OF  CIVIL  JUSTICE. 

sale ;  that  the  premises  or  the  several  parcels  thereof  were 
duly  sold  at  the  time  and  place  notified,  and  to  whom  they 
were  sold,  &c.;  that  the  terms  and  conditions  of  the  sale 
were  reduced  to  writing  and  made  known  at  the  time;  and 
that  the  purchasers  had  complied  with  the  terms,  &c. 

If  there  has  been  any  irregularity  in  the  sale  of  which 
any  party  wishes  to  take  advantage,  the  proper  exceptions 
should  be  taken  and  filed,  and  the  parties  in  interest  should 
be  duly  notified.^  If  there  are  no  objection,  the  next  step 
will  be  to  obtain  confirmation  of  the  sale. 

Confirmation  of  the  sale.  Before  conveyances  can  be  exe- 
cuted and  delivered,  this  report  of  sale  must  be  filed  with, 
and  confirmed  by  the  court.  K^otice  of  motion  for  an  order 
of  confirmation,  to  be  made  at  special  term,  should  be  given 
as  in  all  cases  where  the  order  is  not  one  of  course,^  although 
the  rules  of  the  supreme  court,  as  amended  in  1858,  ap- 
pear to  dispense  with  the  necessity  of  such  a  motion,  &g. 
Still  the  thirty-second  rule  directs  the  filing  of  the  report, 
a  note,  by  the  clerk,  of  its  being  entered  on  the  proper 
book  under  the  title  of  the  cause,  and  a  service  of  notice  of 
filing,  on  all  parties  who  have  appeared.  Then,  if  no  ex- 
ceptions are  filed  and  served  within  eight  days  after  the 
service  of  such  notice  of  filing  of  the  report,  the  report 
becomes  absolute  and  stands  as  confirmed  in  all  things. 

Executing  the  conveyances — Purchaser  declining  to  take  the  title^ 
and  2^roccedings  thereon. 

After  the  confirmation  of  the  sale,  the  referee  should 
execute  and  tender  to  the  purchaser  the  proper  convey- 
ances, and  demand  the  fullfilment  of  the  terms  of  purchase 
according  to  the  conditions  of  the  sale.  If  the  i)urchaser 
decline  completing  his  purchase,  the  referee  will  be  required 
to  move  the  court  to  compel  him  to  do  so. 

This  motion  to  compel  the  purchaser  to  complete  his  pur- 
chase is  based  upon  the  minutes  and  conditions  of  the  sale, 
signed  by  the  piu-chaser,  and  an  affidavit  of  the  execution 
and  tender  of  the  deeds,  and  of  default  in  the  completion 
of  the  purchase,  and  beside  this,  the  purchaser  himself  may 
move  to  be  discharged  fi'om  his  pm'chase,  and  claim  back 
his  deposits,  and,  succeeding  in  this,  he  would  be  entitled 
to  his  costs  and  interests.^ 

'  See  ante. 

"  Edw.   Ref.,  484;    citing  1  Barb,  Ch.  Pr.,  529. 

»  Edw.  Ref.,  486,  487. 


PAETITION.  389 

Purchasers  at  all  judicial  sales  have  a  right  to  receive  at 
the  hands  of  the  court  such  title  as  is  free  from  all  reason- 
able objections.^  A  purchaser,  claiming  to  be  discharged 
from  his  contract,  should  make  out  a  fair  and  plain  case  of 
relief.  If  he  gets  substantially  what  he  bargained  for  he 
must  take  a  compensation  for  the  deficiency.^  But  if  there 
has  been  any  injurious  mistake,  misrej^resentation  or  fraud, 
the  bidding  will  be  reopened,  the  reputed  sale  will  be 
rejected,  or  the  order  of  ratification  will  be  rescinded  and 
the  i)roperty  offered  for  resale.^ 

Where  the  purchaser  is  responsible,  and  the  proceedings 
have  been  regular,  and  the  title  is  good  and  free  from  all 
reasonable  objection,  the  court  will  make  an  order  that  the 
purchaser,  within  a  given  time,  pay  the  money  into  court, 
or  to  the  referee,  and  be  let  into  possession.  But  if  the 
purchaser  has  no  design  to  baffle  the  court,  and  is  unable 
to  comply-,  he  may  be  discharged  on  payment  of  costs.* 

This  order  to  complete  the  purchase,  must  be  served 
personally  upon  the  purchaser,  and  when  not  complied 
with,  it  may  be  enforced  by  moving  that  he  pay  the 
money  within  a  time  limited  or  stand  committed." 

Should  the  purchaser  succeed  in  annulling  the  sale  from 
defect  of  title  or  error,  or  insufficiency  of  proceedings  of 
referee,  he  will  be  entitled  to  the  repayment  of  his  deposit 
money  and  his  costs,  and  a  resale  would  necessarily  be 
ordered. 

The  court  have  authority,  likewise,  to  direct  a  resale 
where  a  purchaser  unjustly  refuses  to  complete  his  pur^ 
chase,  and  in  such  case  the  court  maj  order  and  direct 
that  such  purchaser  make  good  any  deficiency  in  the  price 
obtained  at  such  resale.^ 

The  proceedings  on  the  resale  by  the  referee,  are  to  be 
the  same  as  in  the  original  sale,  to  which  reference  is 
made.^ 

Appeals. 

An  appeal  in  partition  cases  is  now  regulated  the  same 
as  in  other  actions  under  the  Code.  The  court,  upon 
appeal,  may  give  judgment  either  of  affirmance  or  rever- 
sal, in  whole  or  in  jjart,  and  as  to  any  or  all  of  the  parties.^ 

'  13  How.,  476.  •  1  Barb.  Ch.  Pr.,  536;  1  Sug.  V.  &  P., 

*  Sec  liar.  &  GiU,  390.  60;  2  Dan.,  920. 

*  Idem,  346;  22  Barb.,  167.  ''  Ante, 

*  1  Bland.,  50.  •  Code,  §  12 ;  Rule,  78, 

*  14  Ves.,  512;  2  Dan.  Ch.,  920. 


390  ADMIOTSTEATION  OP  CIVIL   JUSTICE. 

When  the  plaintiff's  rights  are  not  contested,  no  copies  of 
the  pleadings  need  be  furnished  the  court ;  otherwise,  the 
mode  of  preparing  and  bringing  on  and  arguing  the 
ai)peal  is,  in  all  respects,  similar  to  that  practiced  in  other 
cases.^ 

An  appeal  from  a  decretal  order  directing  an  actual  par- 
tition and  appointing  commissioners,  is  an  appeal  from  an 
order,  and  is  brought  on  as  a  motion,  and  no  appeal  lies 
from  a  general  term  decision  thereon  to  the  court  of 
ai)peals.  A  review  of  such  decision  in  the  court  of  ap- 
peals can  only  be  had  on  an  appeal  from  the  final  judgment 
rendered  on  the  report  of  the  commissioners  making  the 
partition.  Although  it  is  otherwise  in  case  of  a  judgment 
of  sale,  &c.^ 


CHAPTER  XXV. 

VOLUNTAEY    ASSIGNMENTS    FOR    THE    BENEFIT    OP 
CREDITORS. 

There  are  certain  aflSrmative  or  positive  requisites  to  a 
valid  assignment,  made  voluntarilj^  by  the  debtor,  for  the 
benetit  of  his  creditors.  Every  such  assignment  or  con- 
veyance must  be  in  writing,  and  must  be  duly  acknow- 
ledged before  an  officer  authorized  to  take  the  acknowledg- 
ment of  deeds,*  and  the  certiticate  of  such  acknowledgment 
must  be  duly  indorsed  upon  such  instrument  of  assignment 
or  conveyance,  before  the  delivery  thereof  to  the  assignee 
or  assignees  therein  named  f  and  the  debtor  must,  within 
twenty  days  after  making  such  assignment,  make  and 
deliver  to  the  county  judge  of  the  county  in  which  such 

*  The  acknowledgment  of  deeds  may  be  taken  before  a  justice  of  the  supreme 
court,  a  couiitj'  judge,  surrogate,  mayor  or  recorder  of  a  city  (4  N.  Y.  S.  at  L.,  434), 
justice  of  the  peace  of  a  town,  commissioner  of  deeds  for  a  city  or  county,  or 
notary  pubUc  (1  R.  S.,  756,  §  4;  L.  1840,  ch.  238;  L.  1859,  ch.  360);  and  probably 
by  justices  of  the  New  York  superior  court  as  supreme  court  commissioners  (2 
Duer,  540;  13  N.  Y.,  259), 

»  2  Van  Sant.  Eq.  Pr.,  69.  «  L.   1860,  ch.  348;  4  N.  Y.   S.  at  L., 

'  Idem.  484,  §  1. 


VOLUNTARY  ASSIGNMENTS.  391 

debtor  resided  at  the  date  of  the  assignment,  an  inventory 
or  schedule  containing:  1.  A  full  and  true  account  of  all 
the  creditors  of  such  debtor;  2.  The  place  of  residence 
of  each  creditor,  if  known  to  such  debtor,  and  if  not 
known  to  him,  the  fact  must  be  so  stated ;  3.  The  sum 
owing  to  each  creditor,  and  the  nature  of  each  debt  or 
demand,  whether  arising  on  written  security,  account 
or  otherwise  ;  4.  The  true  cause  and  consideration  of  such 
indebtedness  in  each  case,  and  the  place  where  the  same 
arose ;  5.  A  statement  of  any  existing  judgment,  mort- 
gage, collateral  or  other  security  for  the  payment  of  any 
such  debt;  6.  A  full  and  true  inventory  of  all  such 
debtor's  estate  at  the  date  of  such  assignment,  both  real 
and  personal,  in  law  and  in  equity,  and  the  incumbrances 
existing  thereon,  and  of  all  the  vouchers  and  securities 
relating  thereto,  and  the  value  of  such  estate,  according 
to  the  best  knowledge  of  such  debtor;  7.  An  affidavit 
must  also  be  made  by  the  debtor,  and  annexed  to  and  be 
delivered  with  such  schedule  or  inventory,  to  the  effect 
that  the  same  is,  iu  all  respects,  just  and  true,  according  to 
the  best  of  such  debtor's  knowledge  and  belief.^ 

Requisites  in  respect  to  the  assignee.  The  hond.  The  statute 
requires  that  the  assignee  shall,  within  thirty  days  after 
the  date  of  the  assignment,  and  before  he  shall  have  any 
power  or  authority  to  sell,  dispose  of  or  convert  to  the 
purposes  of  the  trust,  any  of  the  assigned  property,  enter 
into  a  bond  to  the  people  of  the  state  of  New  York,  in  an 
amount  to  be  ordered  and  directed  by  the  county  judge  of 
the  county  where  the  debtor  resided  at  the  date  of  the 
assignment,  with  sufficient  sureties,  to  be  approved  by 
such  judge,  and  conditioned  for  the  faithful  discharge  of 
the  duties  of  such  assignee,  and  for  a  due  accounting  for 
all  moneys  received  by  him  as  assignee,  which  bond  must 
be  filed  iu  the  office  of  the  county  clerk  where  the  assign- 
ment is  recorded.^ 

Acceptance  by  the  assignee. 

To  make  the  assignment  valid,  there  must  be  an  accept- 
ance of  the  trust  by  the  assignee,  and  the  acceptance 
must  take  place  before  the  property  is  taken  in  execution 
by  another  creditor.^    It  is  not  necessary  that  the  assignee 

'L.  1860,  ch.  348;  4  N.  Y.  S.  at  L.,  '24  Wend.,  280;  14  Barb.,  39;  12 

484,  §  2.  Johns.,  418. 

» Idem,  §g  3  and  6. 


392  ADMINISTRATION   OF   CIVIL  JUSTICE. 

unite  in  the  execution  of  the  assignment,  or  that  he  enter 
into  any  express  covenant  to  perform  the  trust.  When  he 
has  accepted  the  delivery  of  the  assignment  and  taken 
possession  of  the  goods,  he  is  bound  to  perform  the  trust.* 
^^^lere  the  assignment  is  made  in  trust  for  the  benefit 
of  creditors,  it  is  not  necessary  that  the  creditors  assent  to 
the  assignment  unless  it  be  made  directly  to  them ;  in 
which  case  their  assent  would  be  necessary .^ 

"What  vests  in  the  assignee. 

Principle  in  assignments.  It  is  a  general  rule  of  law,  that 
a  person  cannot  transfer  to  another  a  right  which  he  does 
not  himself  possess ;  therefore  the  assignment  transfers  to 
the  assignee  only  such  rights  and  powers  as  the  assignor 
possessed  at  the  time  of  making  the  same.  Thus,  where 
an  insolvent  debtor  had  assigned  a  bond  which  then  had 
five  years  to  run,  in  trust  for  the  payment  of  certain  credi- 
tors, and  had  directed  in  the  assignment  that  it  should  not 
be  parted  with  until  the  expiration  of  the  five  years,  and 
that  then,  and  not  before,  it  should  be  collected,  and  imme- 
diately thereafter  made  a  general  assignment,  it  was  held, 
that  the  titles  to  such  bond — though  the  first  assignment 
thereof  was  void  as  against  the  creditors — did  not  pass  to 
the  general  assignee,  for  the  first  assignment  was  good  as 
against  the  assignor,  and  hence  he  could  not  transfer  it 
again ;  but  that  a  creditor  might  reach  it  by  creditor's  bill.' 
This  is  in  accordance  with  the  iH'inciple,  that  a  conveyance 
of  the  debtor's  property,  though  void  as  against  his  credi- 
tors, is  binding  upon  the  assignor,  his  representatives  and 
such  of  his  creditors  as  assent  to  the  same.*  The  assignee 
cannot  impeach  a  chattel  mortgage,  given  prior  to  the 
assignment,  on  the  ground  that  it  was  not  filed  pursuant 
to  the  statute.^ 

Assignee  takes  subject  to  equities. 

It  is  also  a  general  rule  that  the  assignee,  for  the  benefit 
of  creditors,  stands  in  the  i^lace  or  stead  of  the  assignor, 
and  has  no  better  or  higher  rights  in  respect  to  enforcing 
the  collection  of  choses  in  action.    That  such  assignee  is 


*  11  Wend,  241 ;  3  Paige,  557.  *  7  Johns,  161 ;  6  Paige,  577 :  6  Barb., 

'4  Johns.  Ch.,  522;   11  Wend,  241.  470. 

'  1  Sandf.  Ch.,  135;  10  Paige,  210.  '  17  N.  Y.,  580. 


VOLUNTARY  ASSIGNMENTS.  393 

not  to  be  regarded  as  a  purchaser  for  value.*  Thus,  the 
assignee  takes  promissory  notes  by  the  assignment,  subject 
to  any  equitable  right  of  off-set  existing  at  the  time  of 
the  assignment  against  the  assignor.^  So,  also,  he  takes 
goods  subject  to  any  right  of  stojjjjage  in  transitu,  which 
existed  against  the  assignor  ;^  or  to  any  trust  existing  at 
the  time.* 

A  general  assignment  vests  in  the  assignee,  rights  of 
action  existing  at  the  time  in  favor  of  the  assignor,  where 
such  right  of  action  would  survive  to  the  personal  repre- 
sentatives of  such  assignee,  as,  the  right  to  recover 
damages  for  the  conversion  of  personal  iDroperty  would 
pass  by  general  assignment.^ 

27ie  rights  of  the  dd)tor  in  making  assignments — Preferred 
creditors. 

It  is  well  settled  in  this  state  that  a  debtor  has  a  right, 
in  making  an  assignment,  to  prefer  one  creditor  to  another; 
and  equitj^  will  recognize  such  right.^  So  a  debtor  may 
prefer  his  surety  on  a  note  not  matured  as  an  indorser  on 
an  outstanding  note.^  Although  a  general  provision  for  the 
payment  of  debts  will  not  include  a  debt  void  for  usury, 
yet,  when  the  assignment  clearly  provides  for  the  xjayment 
of  such  debt,  the  creditor  will  be  entitled  to  the  amount 
justly  due  thereon.^ 

So,  where  an  assignment  prefers  a  particular  judgment 
obtained  on  a  usurious  debt,  it  is  valid,  on  the  principle 
that  the  debtor  has  the  same  right  to  assign  property  for 
the  jjayment  of  the  judgment  in  preference  to  other  debts 
as  he  would  have  to  pay  it  directly.^ 

A  debtor  in  failing  circumstances,  where  there  is  no  code 
of  bankrupt  or  insolvent  laws  providing  to  the  contrary, 
may  make  an  assignment  of  his  property  in  trust,  prefer- 
ring one  class  of  his  creditors  over  another.^"  Courts  of  law 
consider  the  property  of  the  bankrupt  completely  at  his 
disposal  before  an  act  of  bankruptcy  is  committed,  so  far  as 
to  protect  a  creditor  in  receiving  money  or  goods  in  the 
usual  course  of  business.^* 

>  15  N.  Y.,  195  ;    17  Id.,  28,  580  ;    2     Ml  Wend.,  241 ;  2  Johns.  Ch.,  304  . 

Barb.,  475.  "  7  Paige,  615 ;  4  Barb.,  332. 

»  5  Paige,  592.  »  9  N.  Y.,  73. 

»  6  Duer,  606;  17  N.  Y,  249.  "  See  authorities  collected  in  Tiff.  &  B. 

«  6  Johns.  Ch.,  437.  Trusts,  283. 

•  12  N.  Y.,  622.  "  1  Johns.,  370;  see  5  Id.,  412. 

•  5  Johns.,  335  ;  15  Id.,  571 ;  17  Id.,  438. 

n.— 50 


394  ADMINISTEATION  OF  CIVIL  JUSTICE. 

The  debtor  will  vitiate  the  assignment  if  he  reserve  the 
surphis  to  himself,  after  paying  certain  preferred  creditors; 
and  does  not  make  ample  provision  for  paying  all  his  debts. 
Thus,  where  an  insolvent  assigned  all  his  property  in  trust 
to  pay  certain  preferred  creditors,  making  no  provisions  for 
the  others,  and  then  provided  for  a  reconveyance  of  the 
residue  to  himself,  the  assignment  was  held  to  be  void.^ 

So,  likewise,  the  debtor  is  not  at  liberty  to  create  in  the 
deed  of  assignment  any  trust  for  his  own  benefit.  The 
statute  expressly  declares  that  all  deeds  of  gifts,  all  convey- 
ances, and  all  transfers  or  assignments,  verbal  or  written, 
of  goods,  chattels,  or  things  in  action,  made  in  trust  for  the 
use  of  the  person  making  the  same,  shall  be  void  as  against 
creditors,  &c.*  Any  provision  in  the  assignment,  that  the 
residuum,  after  paying  the  irref erred  creditors,  or  those 
signing  the  deeds  or  executing  a  release,  &c.,  shall  belong 
to  the  assignor,  before  all  the  creditors  were  paid,  would 
render  the  assignment  void.  If  any  part  of  the  property 
be  reserved  to  the  debtor,  or  to  be  reassigned  to  him  before 
the  payment  of  the  entire  claim  of  the  creditors,  that  would 
vitiate  the  assignment.^ 

lAmited  'partnerships. 

A  limited  partnership  is  not  permitted  to  make  assign- 
ments giving  preferences  to  its  creditors.  The  statute 
declares  that  every  sale,  assignment,  or  transfer  of  any  of 
the  property  or  effects  of  a  limited  partnership,  when  in- 
solvent, or  in  contemplation  of  insolvency,  or  after,  or  in 
contemplation  of,  the  insolvency  of  any  partner,  with  intent 
to  give  a  preference  to  any  creditor  of  such  i)artnership  or 
insolvent  partner,  over  other  creditors  of  such  partner- 
ship, &.C.,  shall  be  void,  as  against  the  creditors  of  such 
partnership.*  The  statute  also  makes  a  similar  i)rovision 
applicable  to  the  sale,  &c.,  of  the  property  of  a  general  or 
special  partner.^ 

It  is  also  to  be  observed  that  insolvent  debtors,  who,  in 
their  assignment,  create  a  preference  among  their  debtors 
are  thereby  debared  of  the  right  of  discharge  under  the 
insolvent  act.^ 

Insolvent  corporations  are  not  permitted  to  make  assign- 

'  2  N.  Y.,  365;  15  Id.,  176.  «  1  R.  S.,  766,  §  20;  9  Abb.,  132. 

»  2  R.  S.,  135 ;  2  N.  Y.  S.  at  L.,  140.         '  1  R.  S..  766,  ^  21 ;  6  Paige,  581. 
»  6  Hill,  438.  •  2  R.  S.,  20,  §  24. 


VOLUNTARY  ASSIGNMENTS.  395 

ments  giving  preference  among  their  creditors,  and  any 
such  manifest  intent  will  vitiate  the  assignment.'  But  cor- 
porations, whether  trading  or  religious,  may,  at  common 
law,  assign  their  property  in  trust  for  the  payment  of  their 
debts,  when  there  is  nothing  in  their  charter  restraining 
such  power.* 


Assignments  when  void  upon  tJieir  face. 

As  we  have  just  seen,  limited  partnerships,  &c.,  may 
not  make  assignments  for  the  benefit  of  their  creditors 
giving  preferences,  &c.,  nor  are  corporations  permitted  to 
do  so ;  consequently  when  an  assignment  is  made  b}'' 
them,  in  which  such  preference  appears,  it  will  be  void 
upon  its  face.^ 

All  assignments  in  trust  for  the  use  of  the  assignor,  of 
goods,  chattels  or  things  in  action,  are  void  as  against 
creditors.*  Thus,  an  assignment  by  an  insolvent  debtor 
of  all  his  projjerty  in  trust  to  pay  certain  specified  credi- 
tors, and  then  without  making  provisions  for  other 
creditors,  in  trust  to  reconvey  the  residue  to  the  debtor, 
is  fraudulent  and  void  upon  its  face.^ 

An  assignment  containing  distinct  trusts  which  are 
independent  of  each  other,  some  of  which  are  valid  and 
some  of  which  are  void,  may  be  sustained  as  to  those 
which  are  valid,  unless,  by  statute,  the  deed  creating  the 
trust  is  declared'  void,  in  which  latter  case  the  whole  deed 
must  be  held  void.^ 

Wherever  the  debtor  includes  in  his  assignment  any 
provision  which  looks  to  his  own  personal  advantage  as 
against  the  interest  of  his  creditors,  or  when  he  provides 
for  a  continuance  of  his  own  supervision  over,  and  control 
of,  the  assigned  property,  inconsistent  with  the  transfer  of 
the  absolute  legal  title  to  the  assignee,  it  will  raise  a  pre- 
simiption  of  fraudulent  intent ;  and  there  being  a  fraudu- 
lent intent  on  the  part  of  the  debtor,  it  will  vitiate  the 
assignment.'^ 

So,  also,  any  requirements  which  are  coercive  of  the 
creditors,  imposing  conditions  that  are  not  equitable  or 


'  1  R.  S.,  591,  §  9.  '  2  N.  Y.,  365,  .371  ;  6  Hill,  4.38. 

'  3  N.  Y.,  238  ;  21  Barb.,  221 ;  5  Abb.,  "  22  Wend.,  483 ;  see  2  N.  Y.,  365. 
415.  '  18  Barb..  272;  24  Id.,  105;  14  Johns., 

*  Ante.  458;  11  N.  Y.,  302. 

♦  2  R.  S.,  135,  §  1. 


396  ADMmiSTKATION  OP  CIVIL  JUSTICE. 

just,  before  the  creditors  are  to  be  entitled  to  the  benefit 
of  tiie  assignment,  will  render  the  assignment  void.^ 

Construction.  When  an  assignment  is  impeached,  as 
being  fraudulent  upon  its  face,  the  question  is,  are  the 
provTsious  of  the  instrument  such,  that  when  carried  out 
according  to  their  apparent  and  reasonable  intent,  they 
will  be  fraudulent  in  their  operation  ?  Fraud  will  not  be 
presumed  where  the  instrument  admits  of  an  innocent 
construction.^'  Thus,  an  assignment  of  certain  property 
in  trust  to  pay  certain  creditors,  which  does  not  show  that 
there  are  other  creditors,  nor  does  it  purport  to  con- 
vey all  the  debtor's  property,  or  to  make  any  provision  for 
any  surplus,  is  not  necessarily  fraudulent.  It  may  be  so, 
but  it  will  not  be  presumed  to  be.^ 

Authority  to  sell  on  credit  wiU  vitiate. 

It  is  well  settled  that  if  the  assignment  authorize  the 
assignee  to  sell  on  credit,  it  will  be  void.  The  principle 
is,  that  the  creditor's  have  a  right  to  the  immediate  appli- 
cation of  the  debtor's  property  to  the  payment  of  their 
claims,  and  that  this  right  can  not  be  postponed  by  the 
debtor.  That  to  sell  on  credit  tends  to  hinder  and  delay 
creditors.*  An  authority  to  sell  for  "  available  means," 
as  distinguished  from  money,  was  held  to  imply  a  sale  on 
credit,  &c.,  and  vitiated  the  assignment.^  But  an  assign- 
ment will  not  be  construed  as  authorizing  a  sale  on  credit, 
when  its  language  is  consistent  with  a  different  interpre- 
tation.^ A  general  discretionar}^  power  committed  to  the 
assignee,  as  to  the  time  and  terms  of  sale,  will  avoid 
the  assignment.    It  includes  the  power  to  seU  on  credit.'^ 

The  assignment  must  not  authorize  the  substituting  the 
will  of  the  debtor,  or  of  his  assignee,  or  even  their  discre- 
tion, for  the  judgment  of  the  court.  The  debtor  can 
authorize  no  delay  not  necessarily  incidental  to  the  trust.^ 
Thus,  where  a  manufacturer  of  steam  engines  made  a 
voluntary  assignment  for  the  benefit  of  his  creditors,  and 
therein  authorized  the  assignees  to  apply  the  proceeds  of 
the  sale  of  the  assigned  property  for  the  purpose  of  fiuish- 


'  2  Barb.,   9  ;  5  Johns.  Oh.,  329  ;  20  *  2  N.  T.,  365  ;  6  N.  Y..  510. 

Johns.,  452.  M3  N.  Y.,  215. 

»  15  Barb.,   56;  aflf'd,  11  N.   Y,   302;  «  11  N.  Y.,  302. 

15  Barb.,  618;  22  Id.,  550.  '  11  N.  Y.  L.  6.,  87  ;  see  2  Barb.,  381; 
8  Barb.,  124-  3  Abb.,  400;  22  Barb.,  7  Paige,  568;  10  Id.,  223. 


550 


17  N.  Y.,  9;  6  Abb.,  357. 


VOLimTARY  ASSIGNMENTS.  397 

ing  up  a  number  of  engines  in  a  state  of  forwardness,  &c., 
it  was  held  that  the  assignment  was  void.^ 

An  authority  to  the  assignee  to  do  that,  which,  without 
any  particular  direction  in  the  assignment,  he  would  be 
authorized  to  do,  does  not  vitiate.^ 

An  assignment  ivitli  intent  to  hinder  and  delay  creditors^ 
where  such  intent  is  apparent,  is  void  upon  its  face. 
When  that  which  is  authorized  to  be  done,  necessarily 
involves  the  power  to  hinder  and  delay  creditors,  &c.,  it 
will  vitiate  the  assignment.^ 

Power  to  compromise  does  not  vitiate.  Thus,  where  the 
provisions  in  an  assignment  declared,  that  in  the  collec- 
tion of  debts  due  the  assignor,  the  assignee  might,  in  the 
exercise  of  a  sound  discretion,  compromise  such  as  were 
doubtful  debts.  It  was  held  that  it  tended  to  a  more 
speedy  settlement  and  realization  by  the  creditors  of  their 
claims.*  Such  an  authority  to  compromise  is  no  evidence 
of  a  fraudulent  intent.^ 

Provisions  in  favor  of  the  assignee. 

Any  general  discretionary  power  given  to  the  assignee  by 
which  he  can  control  the  time  and  manner  of  converting 
and  applying  the  proceeds  of  the  debtor's  property  to  the 
payment  of  his  debts  will  vitiate.  Thus,  an  authority  to 
take  immediate  possession  of  the  debtor's  property,  and 
to  convert  the  same  within  a  "convenient  time,"  &c.,  is  in 
fraud  of  the  rights  of  creditors.'^ 

Exemption  from  liaMlity  for  negligence,  which  operates  to 
exonerate  the  assignee  from  the  consequences  of  any  want 
of  ordinary  diligence,  which,  in  the  absence  of  such  clause, 
he  would  be  bound  to  employ,  will  vitiate  the  assignment. 

Authorizing  a  counsel  fee  where  the  assignee  was  an  at- 
torney, was  held  to  render  the  assignment  void.'  Other- 
wise when  he  was  authorized  to  employ  suitable  agents, 
&c.,  at  a  reasonable  compensation,  &c.^ 

Assignment  held  void  upon  extrinsic  evidence. 

Where  an  assignment  appears  fair  upon  its  face  it  may, 
nevertheless,  be  impeached  by  evidence  showing  a  fraudu- 

'  17  N.  Y.,  9  ;  6  Abb.,  357.  *  16  N.  Y.,  562;  19  Barb.,  176. 

»  11  Barb.,  198.  ^  15  Barb.,  618. 

'  2  R.  S.,  137,  §  1 ;  2  N.  Y,  365  ;  6  '  9  Barb.,  255. 

Id.,  510;  Id.,  522;  9  Id,  142;  ■"  17  N.  Y.,  22. 

13  Id.,  215  ;  11  Id.,  302.  "  17  Barb.,  388. 


398  ADMINISTRATION  OF  CIVIL  JUSTICE. 

lent  intent  on  the  part  of  the  assignor  in  executing  the 
same.  The  intent  must  be  to  commit  a  fraud  upon  the 
el-editors  by  such  assignment.^  Bat  this  intent  may  be 
inferred  froin  the  transaction  itself.  Thus,  where  a  debtor, 
being  sued  by  one  of  his  creditors,  assigned  his  stock  of 
good's  and  accounts  absolutely  so  as  to  give  the  preferred 
creditor  the  full  benetit  of  the  assigned  property,  if  more 
than  enough  to  pay  the  debt,  but  if  less  the  debt  was  to  be 
extint'-aished  j^ro  tanto.  The  court  held  that  the  assign- 
ment^must  be  deemed  fradulent,  as  no  reason  could  be  seen 
for  making  an  absolute  assignment  of  all  the  property  to 
the  creditor  without  risk  or  loss  to  him,  unless  upon  some 
secret  or  implied  understanding  between  the  parties  to 
keep  the  surplus  for  the  assignor.' 

Fraud  may  be  inferred  from  an  excessive  amount  of 
property  assigned,  compared  with  the  amount  of  debts.^ 
An  agreement  to  employ  the  assignor  as  agent  of  the  as- 
signee, upon  a  salary,  would  be  a  strong  badge  of  fraud.* 
Making  such  an  assignment  to  an  insolvent  assignee,  is  a 
fraud  iipon  the  creditors;'^  so  if  made  to  one  incompetent 
to  discharge  the  trust  f  so  where  the  assignor  retains  the 
possession  of  the  goods  assigned,"  or  is  permitted  to  con- 
tinue in  possession  of  the  same.^  An  actual  removal  of  the 
property  is  not  absolutely  necessary,  but  the  evidence  must 
be  clear  and  public  that  the  transfer  was  actually  made.^ 

A  valid  assignment  cannot  be  changed.  A  valid  assign- 
ment for  the  benetit  of  creditors  fixes  their  rights,  which 
can  be  varied  afterwards  without  their  consent.  An 
agreement  by  the  trustee,  without  such  consent,  after  the 
making  of  the  assignment,  to  indemnify  one  of  the  as- 
signors, out  of  the  property  assigned,  against  suits  touching 
his  own  property  merely,  is  void.'" 

The  assignee.     His  rights,  duties  and  liabilities. 

The  assignee  becomes  at  once  a  trustee  for  the  creditors, 
and  as  such,  he  has  the  i^owers  and  rights  of  such  trustee. 
He  is  authorized  and  required  to  take  immediate  measures 


»  24  Barb.,  105;  6  Abb.,  371  {note).  '  4  Edw.,  21. 

»  7  Paige,  163.  »  7  Paige,  87 ;  1  Sandf.  Ch.,  348. 

M  Paige,  305.  «  Hoff.,   511;    1  Sandf.   Ch.,   251;    21 

•6N.  Y..  510.  Barb.,  469. 

"  1  Paige,  298.  "  1  Duer,  58 ;  see  also,  28  Barb.,  593. 

•  2  Sandf.  Cli.,  353. 


VOLUNTAKT  ASSIGNMENTS.  399 

to  convert  the  assets  of  the  debtor  into  money  for  the  pay- 
ment of  the  claims  of  the  creditors.  If  the  assignee  fails 
in  the  discharge  of  his  duties  as  such,  the  statute  provides 
for  calling  him  to  an  account.  It  provides  that  after 
the  lapse  of  one  year  from  the  date  of  the  assignment,  the 
county  judge  of  the  county  where  the  inventory  of  the  pro- 
perty assigned  is  tiled,  shall,  upon  the  petition  of  any 
creditor  of  such  debtor  or  debtors,  have  power  to  issue  a 
citation  or  summons  compelling  the  assignee  to  appear 
before  him  and  show  cause  why  an  account  of  the  trust 
fund  created  by  any  such  assignment,  should  not  be  made, 
and  to  decree  payment  of  such  creditor's  just  proportional 
part  of  such  fund.^ 

The  same  statute  also  provides,  that  such  county  judge 
shall  have  power  and  jurisdiction  to  compel  such  assignee 
to  account,  in  the  same  manner  and  to  the  extent  that 
surrogates  have  the  power  in  relation  to  the  estates  of 
deceased  persons.  And  that  the  judge  shall  have  power 
to  examine  the  parties  to  such  assignments,  and  other  per- 
sons, on  oath,  in  relation  to  the  same,  and  to  the  account- 
ing, and  to  all  matters  connected  therewith,  and  to  compel 
their  attendance  for  such  purpose.^ 

JSicit  on  the  bond  of  the  assignee. 

It  has  already  been  shown  that  the  assignee,  before  he 
has  authority  to  sell  or  dispose  of  the  property  assigned, 
or  to  convert  it  to  the  purposes  of  the  trust,  must  enter 
into  bonds  to  the  people  of  the  state,  as  before  described, 
conditioned  for  the  faithful  discharge  of  his  duties.^  When- 
ever the  assignee  shall  omit  or  refuse  to  perform  any 
decree  or  order  made  against  him  by  a  judge  or  court 
having  jurisdiction  to  compel  the  payment  of  any  debt 
out  of  such  trust  fund,  such  county  judge  or  court  may 
order  such  bond  to  be  prosecuted  by  the  district  attorney 
in  the  name  of  the  people,  and  the  moneys  collected  there- 
on must  be  applied  in  satisfaction  of  the  claims  of  the 
creditors  in  the  same  manner  as  they  ought  to  have  been 
applied  by  the  assignee.^  In  the  action  on  such  bond  the 
suit  will  be  commenced  and  conducted  as  in  other  civil 
actions  under  the  Code. 

It  is  the  duty  of  the  assignee  to  pay  over  the  proceeds 

>  L.   1860,  ch.  348,   §  4;  4  N.  Y.  S.  at    '  L.  1860,   ch.  348,  §  5;  4  N.  Y.  S.  at 

L.,  485,  §  4.  L.,  485,  §  5. 

•  Ante. 


400  ADMTNTSTRATION  OF  CIVIL  JUSTICE. 

of  tlie  property  assigned  to  the  creditors,  as  soon  as  their 
respective  rigbts  can  be  ascertained.  If  he  delays  in  doing 
so,  after  the  property  has  been  converted,  he  will  be 
cbar<'-eable  with  interest.  Where  an  assignee  had  received 
the  proceeds  of  the  property  and  had  neglected  for  years 
to  distribute  the  fund,  he  was  decreed  to  pay  the  amount 
and  interest  from  the  time  of  receiving  the  same,  and  also 
the  costs  of  the  suit  brought  by  the  creditors.^ 

The  assignee,  acting  in  good  faith,  will  be  protected  in 
the  discharge  of  his  duties.  Thus,  where  he  had  distri- 
buted the  proceeds  of  the  assigned  estate  among  the  credi- 
tors, and  the  assignment  was  subsequently  held  to  be  void, 
at  the  suit  of  a  creditor  who  had  not  obtained  a  lien  there- 
on until  the  filing  of  his  bill,  it  was  held  that  the  assignee 
was  not  answerable  to  such  creditor.^ 

Compensation.  The  parties  may  provide  for  a  reasonable 
compensation  to  the  assignee  for  his  services  as  such  ;  and 
when  no  provision  is  made  in  the  instrument  of  assign- 
ment, he  will  be  allowed  the  same  commissions  as  are  by 
law  allowed  to  executors  and  guardians,  to  be  computed 
in  the  same  manner.  The  statute  allowance  will  be  con- 
sidered as  tacitly  agreed  upon  in  all  cases  when  nothing 
appears  to  the  contrary.^ 

Appeal.  In  the  proceedings  before  the  judge  as  author- 
ized by  section  foiu*  of  the  act  of  I860,*  the  parties  inte- 
rested in  the  accounting  of  the  assignee,  have  the  same 
right  of  appeal  from  any  order  or  decree  of  such  judge  in 
the  premises  as  is  given  from  the  decrees  of  surrogates 
in  relation  to  the  accounts  of  executors  and  administrar 
tors.* 


CHAPTER  XXVI. 

COSTS. 


The  losing  party,  or  party  in  the  wrong,  ought  as  a 
general  rule,  to  pay  the  expenses  of  litigation,  to  which, 


'  1  Johns.  Ch.,  82.  »  9  Paige,  398 :  see  also,  2  N.  Y.,  365 

»  4  Paige,  23;  6  Id.,  13:  4  Sandf.  Ch.,  Hill  &  D.  Sup.,  105. 

552.  «  4  N.  Y.  S.  at  L.,  485,  §  4;  L.  1860, 

ch.  348,  §  4. 


COSTS.  401 

by  mecans  of  his  wrong,  the  other  party  has  been  subjected  ;^ 
to  accomi)lish  this,  to  some  extent,  in  most  cases  the  pre- 
vailing party  recovers  costs  against  the  other.  The  right 
to  costs  is  purely  statutory.  At  common  law  neither 
party  recovered  costs  against  the  other.^  Formerly,  in 
chancery,  costs  were  awarded  in  the  discretion  of  the 
court,  upon  a  full  and  satisfactory  view  and  determination 
of  the  whole  merits  of  the  case,  and  not  always  depend- 
ing upon  the  event  of  a  cause.^  At  law  there  was  a  fee 
bill,  by  which  the  amount  of  compensation  to  the  attor- 
ney and  counsel  for  each  proceeding  in  the  cause  was 
fixed,  and  this  allowance  was  made  the  measure  of  allow- 
ance to  such  attorney  and  counsel,  as  well  against  his 
own  client,  as  against  the  other  party,  in  case  of  their 
recovery  against  him  by  means  of  the  successful  result  of 
the  cause. 

By  the  Code,  all  statutes  establishing  or  regulating  the 
costs  or  fees  of  attorn ejs  and  counsel  in  civil  actions,  and 
all  existing  rules  and  provisions  of  law  restricting  or  con- 
trolling the  right  of  a  party  to  agree  with  an  attorney,  solici- 
tor or  counsel  for  his  compensation,  were  rej^ealed  ;  and  the 
measure  of  such  compensation  is  left  to  the  agreement, 
express  or  implied,  of  -the  parties.*  lu  lieu  of  these  costs, 
the  Code  provides  certain  fixed  amounts,  that  may  be 
allowed  to  the  prevailing  party,  upon  the  judgment  by 
way  of  indemnity  for  his  expenses  in  the  action.* 

When  the  Code  was  first  enacted,  this  provision  only 
affected  actions  and  proceedings  imder  its  provisions,  but 
such  legislation  has  since  transpired  as  to  render  its  pro- 
visions applicable  to  almost  all  actions  and  special  proceed- 
ings, at  least  so  far  as  fixing  the  amount  of  the  allowance 
is  concerned. 

The  Code,  in  addition  to  fixing  the  amount  of  costs 
that  may  be  recovered,  has  to  some  extent  made  provision 
as  to  special  cases,  in  which  parties  may  not  be  liable, 
and  where  those  not  parties  are  liable.  There  are  several 
statutes  as  to  the  liability  to  costs  in  special  cases,  and, 
under  peculiar  circumstances,  that  are  still  in  force  not- 
withstanding the  provisions  of  the  Code.  There  is,  perhaps, 
no  subject  growing  out  of  the  enacting  of  the  Code,  upon 
which  there  has  been  so  many  and  such  a  diversity  of 


*  Booth  V.  Smith,  5  Wend.,  107.  ^  Eastburn  v.  Kirk,  2  Johns.  Ch.,  317. 

'  Supervisors  of  Onondaga  v.  Briggs,  3     *  Code,  §  303, 
Denio,  173. 

n.— 51 


402  ADMINISTEATION  OF  CIVIL  JUSTICE. 

oi)inions  as  upon  this  subject  of  costs.  It  is  not  proposed 
to  discuss  in  this  chapter  the  great  number  of  conflicting 
decisions  ou  this  subject,  or  even  to  refer  to  them,  but  to 
state  the  law,  &c.,  as  it  is  believed  to  be  now  settled. 

Ordinarily  all  parties  to  actions  or  special  proceedings 
are  liable  to  such  costs  as  the  statute  in  such  cases  imposes 
or  confides  to  the  discretion  of  the  court  to  impose,  but 
in  some  instances  parties  are,  by  statute,  or  may,  by  order 
of  the  court,  be  exempted  from  these  liabilities.  These 
cases  of  exemption  will  be  first  considered. 

Suits  by  2^oor  j)€rsons. 

Every  poor  person  not  being  of  ability  to  sue,  who 
shall  have  a  cause  of  action  against  any  other,  may  peti- 
tion the  court  in  which  such  action  is  depending,  or  in 
which  it  is  intended  to  be  brought,  for  leave  to  prosecute 
as  a  poor  person,  and  to  have  counsel  and  attorneys 
assigned  to  conduct  his  suit.^ 

The  petition  must  state,  first,  the  nature  of  the  suit 
brought,  or  intended  to  be  brought ;  second,  that  the 
applicant  is  not  worth  twenty  dollars,  excepting  the  wear- 
ing apparel  and  furniture  necessary  for  himself  and  his 
family,  and  excepting  the  subject  matter  of  the  action, 
when  not  in  possession  thereof;  and  shall  be  verified  by 
his  own  affidavit,  and  supported  by  a  certificate  of  a  coun- 
selor of  the  court,  that  he  has  examined  the  claim,  and  is 
of  opinion  that  such  poor  person  has  a  good  cause  of 
action. 

This  being  an  application  on  which  a  final  order  is 
sought  in  a  matter  in  which  the  defendant  has  a  direct 
interest,  it  would  seem  that  notice  of  the  application 
should  be  given  f  if  the  application  is  not  made  until 
after  the  defendant  has  appeared,  it  is  clear  that  notice  of 
the  ajiplicatiou  must  be  given.^ 

The  statute  does  not  imperatively  require  permission  to 
be  granted  in  all  cases  to  sue  as  a  poor  person,  merely 
because  his  property  does  not  exceed  in  value  twenty  dol- 
lars, though  it  appears  he  has  a  good  cause  of  action.* 
The  statute  should  be  strictly  construed,®  and  the  order 
should  not  be  granted  unless  a  fair  and  just  case  is  estar 


'  3  K.  S.,  5th  ed.,  744  [445].  «  1  Duer,  706. 

'  1  Paige,  40.  »  2  HilL  413. 

'  1  Paige  40 ;  6  Hill,  257. 


COSTS.  403 

blisbed.  Chancellor  Walworth  said,  "applications  of 
this  kind  are  not  to  be  encouraged  in  this  state,  where 
every  healthy  and  industrious  citizen  can  earn  suthcient 
to  support  himself."^  A  wife  may  be  permitted  to  file  a 
bill  for  separation  by  her  guardian  as  a  poor  person,^  and 
so  may  a  married  woman  for  damages  for  injury  to  her 
separate  property.^  The  motion  will  be  denied  where 
there  is  unreasonable  delay  after  the  suit  is  commenced 
in  making  the  application  ;*  and  if  the  order  is  granted 
after  the  commencement  of  the  suit,  the  party  will  be 
liable  for  the  costs  incurred  before  the  order  was  granted.' 
It  is  doubtful  whether  a  non-resident  will  be  permitted  to 
sue  as  a  poor  person,"  or  whether  any  one  will  be  allowed 
to  defend  as  such.^  The  liability  for  costs  of  a  former  suit 
does  not  prevent  suing  as  a  poor  fjerson.^ 

The  statute  provides^  "  that  the  court  to  which  such 
petition  shall  be  presented,  if  satisfied  of  the  facts  alleged, 
and  that  the  applicant  has  a  meritorious  cause  of  action, 
shall,  by  rule,  admit  him  to  prosecute  as  a  poor  person, 
and  shall  assign  to  him  counselors,  solicitors,  attorneys,  and 
all  other  ofiicers  requisite  for  prosecuting  his  suit,  who 
shall  do  then*  duty  therein  without  taking  any  reward  for 
the  same.  And  that  every  jjerson  so  admitted  may  prose- 
cute his  suit  without  paying  any  fees  to  any  ofiicers  or 
ministers  of  justice ;  and  shall  not  be  prevented  from 
prosecuting  the  same  by  reason  of  his  being  liable  for  the 
costs  of  any  former  suit  brought  by  him  against  the  same 
defendant ;  and  if  he  be  nonsuited,  or  a  verdict  or  judg- 
ment be.  given  against  him,  or  his  bill  be  dismissed,  or  a 
decree  be  rendered  against  him,  he  shall  not  be  liable  for 
any  costs  in  such  suit."  Nor  is  he  liable  for  interlocutory 
costs  until  he  is  dispaupered.^"  This  statute  does  not 
apply  to  bringing  appeals." 

If  the  person  so  prosecuting  be  guilty  of  any  improper 
conduct  in  the  prosecution  of  his  suit,  or  of  any  willful  or 
unnecessary  delay,  the  court  may,  in  its  discretion,  annul 
the  order  admitting  him  to  prosecute  as  a  poor  person,  and 


'  1  Paige,  40,  588.  ''  1  Paige,  588. 

'  3  Paige,  387.  "18  How.  Pr.,  466. 

^  18  How.  Pr.,  466.  "3  R.  S.,  5th  ed.,  745  [445]. 

*  1  Duer,  705.  "  20  Wend.,  679. 
"  1  Paige,  588.  "  2  How.  Pr.,  35. 

•  6  Hill,  257. 


404  ADMINISTRATION  OF  CIYTL  JUSTICE. 

he  shall  thereafter  be  deprived  of  all  the  privileges  con- 
ferred by  such  order.^ 

Trustees  of  express  trust,  &c. 

In  actions  prosecuted  or  defended  by  an  executor,  ad- 
ministrator, trustee  of  an  express  trust,  or  a  person 
expressly  authorized  by  statute,  costs  are  chargeable  only 
upon  or  collected  of  the  estate,  fiiend  or  party  represented, 
unless  the  court  shall  direct  the  same  to  be  paid  by  the 
plaintiff  or  defendant  personally,  for  mismanagement  or 
bad  faith  in  such  action  or  defense.^ 

To  entitle  a  plaintiif  to  exemi^tion  from  costs  because 
of  his  suing  in  a  representative  capacity,  he  should  show 
by  his  complaint  that  he  seeks  to  recover  in  that  capacity.^ 
A  receiver,  sueing  for  any  debt,  claim  or  demand  trans- 
ferred to  him,  or  to  which  he  is  entitled  as  such,  is  not 
personally  liable  for  costs,  even  though  he  sues  without 
leave  of  the  court,  unless  ordered  to  pay  costs  by  the 
court.^  So,  where  a  receiver  prosecutes  an  action  in  good 
faith,  he  is  not  liable  for  costs  for  not  proceeding  to  trial, 
where  a  good  reason  is  shown  for  not  doing  so.^  A  gene- 
ral assignee  for  the  benefit  of  creditors  is  a  trustee  of  an 
express  trust,  and  is  not  personally  liable  for  costs,  unless 
the  court  so  order  for  the  reason  of  his  mismanagement  or 
bad  faith  in  the  action  f  but  where  an  action  is  brought 
by  an  assignee  for  the  benefit  of  creditors,  in  his  capacity 
as  such,  and  in  that  action  it  is  decided  that  the  assign- 
ment is  void,  the  plaintiff  is  liable  for  costs,  without  any 
order  of  the  court.' 

An  executor  or  administrator  who  sues  in  good  faith, 
and  with  a  reasonable  belief  that  he  may  succeed,  ought 
not  to  be  charged  personally  with  costs  f  and  where  he 
has  brought  a  wrong  action  by  mistake,  or  has  ascertained 
that  it  would  be  useless  to  proceed,  in  consequence  of 
facts  subsequently  discovered,  he  will  be  permitted  to  dis- 
continue without  costs  as  well  before  as  after  a  hearing.^ 
Where  an  executor  or  administrator  resists  a  claim  in 
good  faith,  and  from  a  conviction  of  duty,  and  where  no 


»  3  R.  S.,  5th  ed.,  T45  [445] ;  20  Wend.,  »  12  How.,  305 ;  4  Cow.,  548. 

6'?9.  '  30  Barb.,  441. 

'Code,  §317.  8  11  Paige,  99;  6  Id.,  34'?:    1  Edw., 
'  15  Abb.  Pr.,  194.  477. 

*  4  Bosw.,  614.  » 1  Paige,  82. 
»  9  How.  Pr.,  343. 


COSTS.  405 

intentional  or  willful  default  is  made  to  appear,  he  will 
not  be  charged  personally  with  costs.^  The  bad  faith  or 
mismanagement  which  would  render  a  trustee,  &c.,  per- 
sonally liable  for  costs,  is  understood  as  relating  to  the 
particular  action,  and  not  to  conduct  in  the  trust  gene- 
rall3\^  The  power  to  grant  costs  against  such  trustee  rests 
with  the  court.  A  referee  may  certify  his  opinion  in  rela- 
tion thereto,  but  cannot  make  an  order  charging  a  party .^ 
Costs  will  be  allowed  against  an  executor  or  administrator 
personally,  if  he  suffer  judgment  of  non  pros*  or  judgment 
of  nonsuit,  for  not  proceeding  to  trial,^  or  where  his  pro- 
ceedings are  set  aside  for  irregularity.^  So,  where  he 
unnecessarily  sues  in  his  representative  capacity.'  As  a 
general  rule,  where  an  executor  renders  himself  personally 
liable  for  damages,  he  is  liable  for  costs.^ 

Where  it  is  claimed  that  the  trustee  or  executor  or  other 
representative  is  personally  liable  for  costs,  a  motion  for 
an  order  to  that  effect  should  be  made.  It  would  be 
irregular  to  enter  judgment  for  such  costs  without  first 
having  such  order,^  and  if  a  judgment  should  be  thus 
irregularly  entered,  the  facts  which  it  is  claimed  render 
such  executor  personally  liable  will  not  be  listened  to  in 
opposition  to  a  motion  to  set  aside  such  judgment  for 
such  irregularity.^" 

Against  executors  and  administrators. 

If  there  shall  be  a  recovery  in  a  suit  brought  against  an 
executor  ujjon  a  claim  against  an  estate,  no  costs  can  be 
recovered  against  such  executor  or  administrator,  either 
personally  or  to  be  levied  of  the  property  of  the  deceased, 
unless  it  appear  that  the  demand  on  which  the  action  was 
founded,  was  presented,  within  the  time  advertised  for 
creditors  to  present  claims,  and  either  that  the  claim  was 
unreasonably  resisted  or  neglected,  or  that  the  defendant 
refused  to  refer  the  same  pursuant  to  statute."  There  are 
no  other  grounds  for  giving  costs.^^ 

First,  it  must  be  shown  that  the  claim  was  duly  pre- 
sented.   A  vague,  general  demand  of  a  gross  sum  is  not  a 


1  Johns.  Ch.,  473.  '  Idem,  441 ;  4  Id.,  47 ;  18  Weud.,  G35. 

"  22  How.  Pr.,  281 ;  21  Id.,  275.  '  4  Barb.,  626. 

'  12  How.,  300.  '  2  How.  Pr.,  15. 

*  4  John.s.,  190.  "°  9  Wend.,  448. 

*  1  Wend.,  34.  "  3  R.  S.,  5th  ed.,  176  [90]. 

*  3  Hill,  444.  "  9  Barb.,  388;  6  Id.,  341. 


406  ADMINISTEATIOIf   OF   CIVIL  JUSTICE. 

suflScieDt  statement  of  the  claim.  The  statute  contemplates 
the  presentment  of  an  amount,  or  some  claim  which  may 
be  supported  by  vouchers,  and,  if  requbed,  by  the  affidavit 
of  the  party  presenting  it.^  The  creditor  is  not  bound  to 
exhibit  the  evidences  of  his  claim,  or  make  oath  of  the  jus- 
tice thereof,  unless  required  to  do  so  by  the  executors.' 

The  executor  is  not  bound  to  give  notice  to  the  creditors 
to  present  their  claims,-'  but  if  he  does  give  notice,  the  claim 
must  be  presented  within  the  time  fixed  by  the  notice.'' 
And  where  the  claim  did  not  exist  till  after  the  expiration 
of  the  time  presented  in  the  notice,  no  costs  can  be 
recovered.^  It  is  said  that  where  an  action,  on  the  death 
of  the  defendant,  abated,  and  it  was  revived  and  continued 
against  his  administrators  without  presenting  to  them  the 
demand  and  offering  to  refer,  and  the  plaintiff  recovered 
judgment  for  less  than  the  amount  he  claimed,  that  he 
could  not  recover  costs  from  the  administrators;^  but 
where  a  defendant,  in  an  action  upon  contract,  dies  pend- 
ing the  action,  and  it  is  continued  by  order  of  the  court 
against  his  personal  representatives,  the  plaintiff  will 
recover  costs  against  the  estate  of  the  deceased,  if  the 
verdict  be  one  which  would  have  entitled  him  to  recover 
costs  of  such  defendant  had  he  not  died." 

When  the  claim  is  presented  to  the  executor,  he  should 
be  allowed  reasonable  time  to  confer  with  his  co-executors, 
and  to  inquire  and  examine  into  the  circumstances  on 
which  the  claim  is  founded.^  After  such  reasonable  time  it 
should  appear  that  the  chiimant  offered  to  refer,  notwith- 
standing it  is  said  in  Fort  v.  Gooding,^  that  if  the  execu- 
tors unqualifiedly  reject  the  claim  as  unjust  and  not  due, 
unaccompanied  with  any  offer  to  refer  it  under  the  statute, 
the  creditor  is  under  no  obligations  on  his  part  to  propose 
a  reference.  It  would  seem  to  be  a  sounder  interpretation 
of  the  statute  that  the  rejection  of  the  claim  is  not  sufficient 
evidence  of  a  refusal  to  refer ;  if  either  party  desires  to  refer 
he  must  offer  to.  The  executor  cannot  be  said  to  refuse 
until  the  claimant  in  some  way  manifests  his  willingness 
to  refer.'*^  An  oft'er  to  arbitrate  is  not  a  sufficient  otter  to 
refer,"  nor  is  an  offer  to  leave  it  out  to  some  disinterested 

'  9  How.  Pr.,  350.  '  3  Duer,  669. 

""  6  Hill.  389.  »  16  How.  Pr.,  40t ;  6  HiU,  386. 

=*  1  Denio,  276;  4  How.  Pr.,  217.  '  9  Barb.,  388. 

*  1  Denio,  276.  »  15  How.  Pr.,  304;   16  Id.,  407. 

'  3  Id.,  261.  »  12  Wend.,  278. 

'  15  How.  Pr.,  79. 


COSTS.  407 

persons.^  There  is  nothing  in  the  statute  which  necessarily 
requires  a  personal  interview  between  the  claimant  and  the 
executor,^  and  it  seems  that  a  neglect  to  answer  an  offer  or 
proposition  might  be  deemed  a  refusal.^ 

If  the  claim  has  been  regularly  presented,  and,  upon  the 
offer  being  made,  the  executor  refuses  to  refer,  or  unreason- 
ably neglects  to  make  any  reply,  the  plaintiff  will  be 
entitled  to  costs  of  his  action. 

To  make  the  executor  liable  for  costs  for  having  unrea- 
sonably resisted  or  neglected  a  claim,  it  must  be  shown  that 
he  neglected  his  duty,  or  that  he  acted  captiously  and  in  bad 
faith  with  the  claimant.  As  to  what  facts  would  amount 
to  an  unreasonable  resistance,  or  what  omission  to  pay 
would  amount  to  an  unreasonable  neglect,  must  necessarily 
depend  upon  the  facts  of  the  particular  case.''  If  it  can  be 
shown  that  the  executor  knew  the  facts  on  which  the  claim 
rested,  and  those  facts  establish  a  manifestly  just  claim,  it 
can  well  be  said  the  refusal  is  unreasonable ;  if  he  concedes 
the  justice  of  the  claim,  and  it  can  be  shown  that  he  has 
funds  that  can  properly  be  appropriated  to  the  payment  of 
it,  then  the  neglect  is  unreasonable ;  but  if,  on  the  other 
hand,  he  has  no  assets,  he  cannot  be  charged  with  costs  for 
a  refusal  to  pay.^  Nor  can  he  be  said  to  have  unreasonably 
refused  if  a  material  deduction  from  the  claim  is  made  in 
determining  the  amount  of  the  recovery,''  or  the  amount  of 
the  recovery  is  reduced  by  a  set-off  that  the  party  refused 
to  allow.''  The  fact  that  the  plaintiff's  claim  was  reduced 
is  not  always  evidence  that  the  claim  was  not  unreasona- 
bly resisted ;  if  the  plaintiff  has  a  clear  right  to  recover, 
and  fails  not  as  to  the  right  of  his  claim,  but  on  the  ques- 
tion of  value,  and  it  not  appearing  that  he  had  attemi)ted 
to  be  extortionate  in  his  demand,  it  is  said  that  the  executor 
ought  to  have  offered  to  allow  the  claim  at  what  he  believed 
was  right,  and  not  having  done  so  he  would  be  charged 
with  costs.^ 

It  is  said  that  the  representative  is  bound  to  refuse  to 
refer  a  claim  which  is  essentially  of  an  equitable  character, 
and  that  he  will  not  be  charged  with  costs  for  such  refusal,^ 
but  this  does  not  seem  to  be  free  from  doubt.^" 


'  12  How.  Pr.,  282.  '  13  Wend..  453;   1  Barb.,  .519. 

»  6  HiU,  391.  '  7  Wend.,  522. 

'  15  How.,  304.  '  9  Barb.,  390;   6  Weiid.,  554. 

*  5  Wend.,  74;  6  Id.,  554;   7  Id.,  528.     »  18  How.  Pr.,  438. 

'  1  Denio,  276.  "  3  Denio,  161. 


408  ADMmiSTEATIOX  OF   CTVIh  JUSTICE. 

The  plaintiflf  having  recovered,  if  he  desires  to  charge 
the  executors  with  costs,  must  move  at  special  term  for  an 
order  allowing  costs.  The  statute  provides  that  if  the 
action  be  brought  in  the  supreme  court,  the  facts  shall  be 
certified  by  the  judge  before  whom  the  trial  shall  have 
been  had  ;^  but  this  certificate  alone  is  not  sufficient ;  the 
facts  relied  upon  to  show  that  the  defendant  is  liable  for 
costs  should  be  set  forth  in  the  moving  papers,  so  that  the 
court  may  decide  upon  them.^ 

Munidpcd  co'rporations. 

No  costs,  fees,  disbursements,  or  allowance  can  be  re- 
covered or  inserted  in  any  judgment  against  a  municipal 
corporation,  unless  the  claim,  upon  which  such  judgment 
is  founded,  shall  have  been  presented  for  payment  to  the 
chief  fiscal  othcer  of  said  corporation  before  the  commence- 
ment of  an  action  thereon.*  This  rule  applies  to  claims 
for  damages  on  account  of  the  negligence  or  misconduct 
of  the  authorities  as  well  as  to  demands  upon  contract.* 

Security  for  costs. 

Under  the  provisions  of  the  Revised  Statutes,  when  a 
suit  shall  be  commenced  in  any  court :  1.  For  a  plaintiff 
not  residing  within  the  jurisdiction  of  such  court,  or  for 
several  plaintiffs  who  are  all  non-residents ;  or,  2.  For  or 
in  the  name  of  the  trustees  of  any  debtor  ;  or,  3.  For  or  in 
the  name  of  any  person  being  insolvent,  who  shall  have 
been  discharged  from  his  debts  or  whose  person  shall 
have  been  exonerated  from  imprisonment  pursuant  to  any 
law,  for  the  collection  of  any  debt  contracted  before  the 
assignment  of  his  estate  ;  or,  4.  For  or  in  the  name  of  any 
person  committed  in  execution  of  a  crime ;  or,  5.  In  the 
name  of  an  infant  whose  next  friend  has  not  given  secu- 
rity for  costs,  the  defendant  may  require  such  plaintiff  to 
file  security  for  the  payment  of  the  costs  that  may  be 
incurred  by  the  defendant  in  such  suit  or  proceedings,  and 
if  after  the  commencement  of  a  suit  the  plaintiff  shall 
become  a  non-resident,  or  all  the  plaintiffs  shall  become 
non-residents,  or  insolvent,  and  be  discharged  or  exonerated 
as  aforesaid,  or  be  sentenced  to  state  prison  for  a  term  less 


3  R.  S.,  5th  ed.,  176  [90].  ^  j^^^,^  jgg^^       --q  ^-^  262.  S  2. 

6  Hill,  399;  18  Weud.,  531;   12  Id.,     *  36  Barb..  226. 
195. 


COSTS.  409 

than  for  life,  the  defendant  may  also  require  such  security 
to  be  filed.^ 

By  the  provisions  of  the  Code,  the  court  may  also,  in  its 
discretion,  require  a  plaintiff  to  give  security  for  costs  in 
an  action  prosecuted  by  an  executor,  administrator,  trustee 
of  an  express  trust,  or  a  person  expressly  authorized  by 
statute.^ 

As  to  /(yreign  corporations,  it  is  provided  by  statute  that 
they  may  prosecute  actions  in  this  state  the  same  as  cor- 
porations created  under  the  laws  thereof,  upon  giving 
security  for  the  payment  of  the  costs  of  suit.^  If  such 
corporation  omit  to  give  security  its  proceedings  will  be 
set  aside  on  motion ;  but  where  the  omission  was  casual, 
it  will  be  allowed  to  proceed  upon  complying  with  the 
statute  and  paying  costs  of  the  motion.* 

The  power  to  require  security  for  costs  is  inherent  in  the 
court,  and  it  has  the  power  of  staying  proceedings  till 
security  for  costs  shall  be  filed  independent  of  the  statute.^ 
This  ijower  is  rarely  exercised  except  in  cases  where,  with- 
in the  spirit  of  the  statute,  there  should  be  security,  as 
where  the  plaintiff  is  insolvent  and  the  real  party  in  inte- 
rest is  a  non-resident ;  it  may  sometimes  be  exercised  where 
it  is  clear  that  the  prosecution  is  mahcious,  frivolous  and 
vexatious.  The  tribunals  of  this  country  are,  of  common 
right,  open  to  every  one  who  is  answerable,  either  in  per- 
son or  property,  for  the  goodness  of  his  demand.  The 
courts  are  very  cautious  in  requiring  security  for  costs  in 
cases  where  it  is  not  required  by  statute,  lest  some  one  too 
poor  or  too  friendless  to  give  the  required  security  should 
be  precluded  from  ijrosecuting  a  just  cause  of  action. 

When  to  make  the  application.  The  application  should  be 
made  as  soon  as  it  comes  to  the  knowledge  of  the  defend- 
ant that  the  plaintiff  is  liable  to  give  security.^ 

It  has  been  said  that  where  the  non-residence  of  the 
plaintiff  appears  on  the  face  of  the  complaint,  if  the  de- 
fendant take  any  step  in  the  cause,  he  waives  security  for 
costs.^  This  was  the  English  rule;  but  it  does  not  seem  to 
be  the  rule  in  this  state  f  here  he  is  not  required  to  apply  at 
the  first  opportunity  f  but  where  the  application  was  not 

»  3  R.  S.,  5  ed.,  910  [620],  2  Sandf.,  '  18  Wend.,  652 ;  1  Denio,  659 ;  3  How. 

632.  Pr.,  136. 

'  Code,  §  317,  "  8  Johns.  Ch.,  520. 

»  2  R.  S.,  457.  '  3  Johns.  CI).,  520. 

«  19  Wend.,  10.  '  18  Wend.,  652. 


n.— 52 


•  1  Edw.,  449 ;  4  Sandf.  Ch.,  434. 


410  ADMIKISTEATION   OF  CIVIL  JUSTICE. 

made  until  the  cause  had  been  referred  and  noticed  for 
hcariug,  it  was  denied.^  So,  where  the  application  was 
not  made  till  after  verdict,^  but  this  would  not  be  so  if  the 
uou-residence  of  the  plaintiff  had  just  been  ascertained.^ 

The  application.  Where  the  application  is  under  the 
statute,  it  may  be  made  to  the  court  in  which  the  applica- 
tion is  pending,  or  to  any  judge  thereof  in  vacation  ;  in 
other  cases  the  application  must  be  made  to  the  court.  An 
affidavit  should  be  prepared  showing  the  facts  entitling 
the  defendant  to  such  security ;  and  on  this,  notice  of  the 
application  to  the  special  term  should  be  given ;  but  where 
the  security  is  claimed  under  the  statute,  the  usual  practice 
is  to  apply  to  a  judge  at  chambers  for  an  order  that  the 
plaintiff  file  security  within  a  given  number  of  days  or 
show  cause,  at  a  time  and  place  to  be  specified  in  the  order, 
why  he  should  not  be  required  to  file  security.*  It  is 
usually  ordered  that  all  proceedings  be  stayed  until  secu- 
rity is  filed  and  the  sureties  shall  have  justified  if  excepted 
to.'^  If  security  is  not  filed  and  the  defendant's  motion  is 
granted,  a  peremptory  order  operating  as  a  stay  of  pro- 
ceedings, will  be  allowed.  Then  if  security  is  not  tiled 
within  a  reasonable  time,  a  motion  to  dismiss  the  com- 
plaint will  be  granted.^ 

Effect  of  the  order  to  slioiv  cause.  The  order  to  show  cause 
suspends  the  running  of  the  twenty  days  in  which  the 
defendant  is  required  to  plead,  until  the  plaintiff  has  filed 
securities  and  his  sureties  have  justified  if  excepted  to, 
unless  he  should  succeed  in  showing  cause  against  the 
order,' 

Security.  The  security  is  required  to  be  in  the  form  of  a 
bond,  in  a  penalty  of  at  least  two  hundred  and  fifty  dol- 
lars, with  one  or  more  sufiicient  sureties  to  the  defendant, 
conditioned  to  pay  on  demand  all  costs  that  may  be 
awarded  to  the  defendant  in  such  suit.  It  must  be  filed 
with  the  clerk  of  the  county  where  the  venue  is  laid,  and 
notice  thereof  must  be  given  to  the  defendant  or  his  attor- 
ney. The  bond  need  not  follow  the  precise  words  of  the 
statute ;  it  will  be  sufficient  as  against  the  defendant's 
objection  if  equally  favorable  to  him."  It  need  not  be 
signed  by  the  plaintiff,  nor  need  it  be  signed  by  more 


'  1  Duer,  105;  3  Id.,  613.  »  2  R.  S.,  620;  3  Wend.,  445. 

'  13  Johns.,  330.  «  15  Abb.  Pr..  271. 

'  14  Abb.  Pr.,  1.  •>  3  How.  Pr.,  246. 

*  8  How.,  492.  •  2  Code  R,  14. 


COSTS.  411 

than  one  responsible  surety.^  It  must  be  proved  or 
acknowledged. 

Excepting.  Witbiu  twenty  days  after  the  service  of 
notice  of  filing  tbe  bond,  the  defendant  may  except  to  the 
sufliciency  of  the  sureties,  by  giving  notice  of  such  excep- 
tion to  the  plaintiff's  attorney.^  A  notice  that  the  defend- 
ants do  not  accept  the  bail  put  in  is  not  a  sufficient 
exception.^ 

Justification  of  sureties.  Within  twenty  days  after  such 
notice  of  exception  the  sureties  must  justify,  by  an  affi- 
davit that  they  are  worth  double  the  penalty  of  such  bond, 
over  and  above  all  debts  ;  of  which  affidavit  a  copy  must 
be  served  on  the  defendant  or  his  attorney.*  And  this 
justification  must  be  made  notwithstanding  an  affidavit 
of  justification  was  made  and  served  with  the  boud.^  If 
more  than  one  surety  has  signed  the  bond  given  under  a 
rule  to  file  secm'ity,  the  justification  by  one  is  sufficient. 
A  proper  justification  operates  to  discharge  the  order  to 
stay  jjroceedings. 

Hearing  of  motion.  If  the  party  supposes  that  he  is  not 
liable  to  give  security,  he  may,  on  the  motion,  or  on  the 
day  for  showing  cause  by  affidavit,  controvert  the  defend- 
ant's allegations,  and  present  his  reasons  for  excusing 
himself  fi'om  giving  security.  The  statute  is  not  imperative 
upon  the  court  to  grant  an  order  for  security  for  costs 
under  all  circumstances,  and  where  the  application  is 
resorted  to  for  other  and  improper  purposes,  it  should 
not  be  granted.^  It  is  no  excuse  for  not  filing  security  for 
costs,  that  the  person  does  not  intend  to  continue  perma- 
nently a  non-resident."  So  a  guardian  for  an  infant  i)laintiff 
must  give  security.®  In  replevin  the  bond  given  at  the 
commencement  of  the  action  is  sufficient  security  for  costs." 
If,  after  obtaining  an  order  to  file  security  for  costs,  the 
defendant  notices  the  cause  for  trial,  it  is  a  waiver  of 
the  stay  of  proceedings,  and  the  plaintiff  is  at  liberty  to 
appear  and  prosecute  the  suit.^" 

Leave  of  the  court  to  sue  the  security  for  costs  is  not 
necessary.^^ 


'4Sandf.,   434;  1  How.  Pr.,  191 ;  2     »  1  Denio,  628;  1  Duer,  705. 
Duer,  678.  '  1  Bosw.  657  ;   2  Paige,  603. 

«  2  R.  S.,  620.  »  6  Hill,  256;   1  Paige,  178. 

'  4  Abb.  Pr..  460.  »  9  Wend.,  462. 

*  2  R.  S.,  620.  ">  2  Edw.,  494  ;  8  How.  Pr.,  495. 

*  8  How.  Pr.,  492.  »  7  Wend.,  482. 


412  ADMrniSTKATION  OF  CIVIL  JUSTICE. 

Attorneifs  Udbility.  In  cases  in  which,  according  to  the 
X)rovisious  of  statute,  the  defendant  at  the  commencement 
of  a  suit  shall  be  entitled  to  require  security  for  costs,  the 
attorney  for  the  plaintiff  shall  be  liable  for  such  costs  to 
an  amount  not  exceeding  one  hundred  dollars,  until  secu- 
rity therefor  be  filed,  whether  such  security  shall  have 
been  required  by  the  defendant  or  not.^  The  attorney  is 
liable  if  the  real  plaintiff  is  a  non-resident,  although  the 
nominal  plaintiff  is  a  resident  f  but  where  a  plaintiff  is  a 
resident  at  the  commencement  of  the  suit,  his  subse- 
quent removal  will  not  make  his  attorney  liable  for  costs, 
although  he  proceeds  in  the  suit.^  The  attorney's  liability 
should  not  be  declared  in  the  judgment  in  the  action,  but 
can  be  enforced  by  summary  proceeding.* 

The  attorney  may  relieve  himself  from  such  liability  by 
filing  security,  and  the  securities  therein  justifying  if 
excepted  to,  without  being  required  to  do  so  by  the  defend- 
ant, and  by  giving  notice  thereof  to  such  defendant  or 
his  attorney.^ 

Staying  proceedings  until  costs  of  former  suit  are  paid. 

Every  court  of  justice  has  power  to  control  its  proceed- 
ings so  as  to  prevent  oppression  between  its  suitors,*^  and 
to  this  end  the  court  will  not  permit  a  defendant  to  be 
harrassed  by  a  second  suit  for  the  same  cause  until  the 
costs  of  the  former  suit  have  been  paid."  The  practice  of 
the  court  to  stay  proceedings  in  a  second  action,  where  the 
plaintiff  has  failed  in  a  former  action  against  the  same  de- 
fendant, for  the  same  cause,  until  the  costs  of  the  former 
action  be  paid,  originated  in  the  action  of  ejectment ;  but 
it  was  afterwards  extended  to  other  forms  of  action,  and 
the  power  is  now  exercised  in  all  cases,  and  this  form  of 
relief  is  granted,  although  the  former  action  was  not 
tried  upon  the  merits,  but  was  discontinued,  dismissed,  or 
disposed  of  by  judgment  of  nonsuit,  or  where  there  was 
judgment  on  demurrer.*^  It  is  also  extended  to  appeals,  so 
that,  where  a  former  appeal  of  the  case  had  been  dismissed 


>  2  R.  S.,  621.  '  19  Johns.,  237  ;  22  How.  Pr.,  444. 

»  10  Wend.,  621.  »  l  Tidd's  Pr.,  480 ;  Tidd's  on  Costs,  83; 

»  3  Den.,  266 ;  3  Sandf.,  129.                           4  Penn.  St.  Rep.,  475 ;  2  HuUock, 

*  9  Pai.,  382.  457;  2  Smith  Rep.,  423;  3  Aust., 

*2R.  S.,  621.  835. 
'  P.  A.  Browne,  38. 


COSTS.  413 

with  costs,  and  the  costs  liad  not  been  paid,  a  second 
appeal  was  stayed  until  the  costs  of  a  former  appeal  should 
be  paid.^ 

It  must  appear  that  the  same  matter  is  drawn  in  question 
in  the  second  suit  that  was  involved  in  the  first.  It  is  not 
essential  that  the  cause  of  action  in  the  second  suit  was 
the  only  one  involved  in  the  first,  or  that  the  form  of  action 
was  the  same;  it  is  sufficient  that  the  matter  involved  in 
the  second  suit  was  involved  in  the  flrst.^ 

Where,  in  ejectment,  the  same  title  to  the  same  premises 
is  drawn  in  question  in  the  second  suit  between  i^arties  or 
privies  to  the  first,  the  court  will  order  the  payment  of  the 
costs  of  the  first  suit  before  they  will  sutfer  the  second  to 
proceed  f  but  this  rule  was  held  not  to  apply  where  three 
heirs-at-law  brought  a  suit  to  recover  premises  of  their 
ancestor,  while  a  judgment  for  costs  of  dismissal  of  the 
comj)laint  in  a  suit  brought  by  one  of  them,  remained  un- 
paid, such  second  suit  is  not  regarded  as  between  the  same 
parties  or  privies.*  So,  in  ejectment,  where  neither  of  the 
lessors  in  the  former  suit,  nor  any  one  claiming  under  them, 
were  named  in  the  second,  and  the  lessor  goes  for  a  dis- 
tinct portion  of  the  premises  from  that  claimed  on  the 
former  suit,  the  court  will  not  stay  his  proceedings  until 
the  costs  of  the  former  suit  are  paid,  although  he  claims 
under  the  same  title.*  The  mere  fact  that  the  case  is  not 
between  the  same  parties,  or  that  new  parties  have  been 
added  in  the  second  case,  will  not  permit  the  allowance  of 
a  stay,  if  the  same  matter  is  involved  and  the  new  or  addi- 
tional parties  were  parties  in  interest  in  the  first  suit.^  Pro- 
ceedings in  an  action  by  the  husband  and  wife  have  been 
stayed  until  the  costs  in  a  former  action  by  the  husband 
for  the  same  demand  were  paid.^  So  the  court  will  order 
a  stay,  though  the  action  was  by  an  infant  by  a  different 
next  friend  from  the  one  in  the  former  suit.^ 

It  makes  no  difference  that  the  former  action  was  pend- 
ing in  another  court  f  the  power  has  been  exercised  where 
the  former  suit  was  in  a  court  of  the  United  States  f  but 
it  is  said  this  stay  will  not  be  granted  where  the  former 


*  5  How.  Pr.,  75.  «  1  Tldd's  Pr.,  480. 
« 1  P.  A.  Browne,  38.  '  9  Wend.,  449. 

=  1  Cow.,  138.  ^  19  Johns.,  237 ;  3  Cow.,  380. 

*  13  How.  Pr.,  462.  *  3  Cow.,  22. 

*  6  HUl,  372 ;  2  Arch.  Pr.,  209;  4  Penn. 

St.  Rep.,  475. 


414  ADMENISTRATION"  OF  CIYIL  JUSTICE. 

suit  was  in  another  state  or  country.^  Where  a  judgment, 
rendered  in  the  supreme  court,  was  reversed  in  the  court 
of  errors,  with  costs,  and  a  new  trial  was  awarded,  the 
plaintiffs  proceedings  were  staj^ed  until  the  payment  of 
the  costs  in  error.^ 

Proceedings  will  not  be  stayed  where  the  defendant  pre- 
vents, unreasonably,  the  progress  of  the  first  suit,  and  the 
plaintitt"  does  not  proceed  vexatiously  ;^  nor  in  a  qui  tarn 
action  until  the  costs  of  a  former  action  for  the  same  pen- 
alties by  another  party  were  paid  ;^  nor  where  the  plaiutilf 
has  been  imprisoned  for  the  costs  of  the  former  suit,^  such 
imprisonment  being  deemed  the  highest  satisfaction  of  the 
judgment  obtained  against  him  known  to  the  law.^ 

The  power  of  the  court  to  restrain  parties  from  the  pro- 
secution of  a  second  suit  for  the  same  cause,  extends  to 
the  costs  of  a  different  suit  only;  and  the  court  will  in  no 
case  stay  the  prosecution  of  a  suit  until  the  costs  of  an  in- 
terlocutory order,  made  in  the  progress  of  the  same  suit, 
be  paidJ 

The  motion.  The  order  for  staying  proceedings  is  ob- 
tained by  special  motion.  It  cannot  be  made  until  the 
first  suit  is  at  an  end  and  in  such  a  state  that  the  defend- 
ant is  entitled  to  receive,  and  the  plaintiff  bound  to  pay, 
costs.^  The  motion  should  be  made  while  the  second  suit 
is  in  course  of  litigation.^  It  may  be  made  after  the  ver- 
dict in  the  second  suit,  but  must  be  made  before  judgment.^" 
If  the  motion  i^revails,  the  usual  order  will  be,  that  all 
plaintiff's  proceedings  be  stayed  until  all  the  costs  of  the 
former  suit  and  the  costs  of  the  motion  for  the  stay  are 
paid.^^ 

If  after  the  motion  is  granted,  the  plaintiff  proceed  in 
the  second  suit  without  paying  the  costs  required  by  the 
order,  the  com-t,  on  motion,  will  set  aside  such  proceedings 
with  costs.^^ 

When  a  party  not  of  record  liable  for  costs. 
The  plaintiff.  It  is  provided  by  statute  that  where  any 
action  shall  be  brought  in  the  name  of  another,  by  an 

» 15  Abb.  Pr.,  429.  '  2  Wend.,  623. 

"  4  Wend.,  216.  »  Grab.  Pr..  2d  ed.,  555. 
'  2  Cow.,  580 ;  1  Tidd  Pr.,  480  ;  Sayer    »  3  Cow.,  57. 

on  Costs,  245-251.  ">  2  Cow.,  503. 

*  Cowp.,  322.  "  22  How.  Pr.',  444. 
'  4  Wend.,  203 ;  8  D.  &  R.,  42.  "  2  Arch.  R.,  210. 

•  1  Cow.,  56. 


COSTS.  415 

assignee,  of  any  right  of  action,  or  by  any  person  bene- 
ficially interested  in  the  recovery  in  snch  action,  such 
assignee  or  person  shall  be  liable  for  costs  in  the  same 
cases,  and  to  the  same  extent,  in  which  a  plaintiff  would 
be  liable.' 

The  Code  provides  that  in  actions  in  which  the  cause  of 
action  shall,  by  assignment  after  the  commencement  of  the 
action,  or  in  any  other  manner,  become  the  property  of  a 
person  not  a  party  to  the  action,  such  person  shall  be  liable 
to  costs  in  the  same  manner  as  if  he  were  a  party .^ 

It  is  also  provided  by  the  Code,  that  in  an  action  prose- 
cuted in  the  name  of  the  people  of  this  state  for  the 
recovery  of  money  or  property  or  to  establish  a  right  or 
claim  for  the  benefit  of  any  county,  town,  city,  village, 
corporation  or  person,  costs  awarded  against  the  plaintiff 
shall  be  charged  against  the  party  for  whose  benefit  the 
action  was  prosecuted  and  not  against  the  people.^ 

The  first  proposition  to  be  established  to  make  a  person 
not  a  party  liable  under  the  Eevised  Statutes,  is,  that  he 
brought  the  suit,*  and  it  does  not  matter  to  what  extent  the 
person  sought  to  be  charged,  who  is  not  a  party,  raay  be 
interested  in  the  recovery,  if  in  truth  he  is  not  chargeable 
with  having  brought  the  action,  he  is  not  chargeable  with 
the  costs/  It  was  also  the  settled  practice  before  the  Code, 
that  where  one  is  beneficiall}^  interested  in  the  demand  of 
the  plaintiff"  as  assignee  under  an  assignment  made  dur- 
ing the  pendency  of  the  suit,  and  he  x)roceeds  in  the  action, 
he  is  liable  for  costs,^  and  in  such  a  case  he  takes  the  de- 
mand cum  onere,  and  is  liable  for  the  costs  which  had 
accrued  before,  as  well  as  those  which  may  accrue  after, 
the  assignment.*'  The  mere  fact  of  taking  an  assignment 
pending  the  action  would  not  make  the  assignee  liable 
unless  he  carried  on  the  suit ;'  but  this  seems  to  have  been 
changed  by  the  Code  f  by  its  provision,  if  by  assignment 
or  otherwise,  the  cause  of  action  became  the  property  of 
a  person  not  a  party  to  the  action,  such  person  is  liable 
for  the  costs  in  the  same  manner  as  if  he  were  a  party,  and 
this  liability  is  not  made  to  depend  upon  his  prosecuting 
the  action. 


'  2  R.  S.,  618.  '  20  Wend.,  632;  5  Cow.,  17,  24,  60. 

«  Code,  §  321.  •  20  Wend.,  632  ;  10  Id.,  622. 

*  Code,  §  320.  '  20  Wend.,  632. 

♦  12  N.  Y.,  32;  1  Hill,  629;  18  Wend.,  »  Code,  §  321. 

672;    23  How.  Pr.,  229;  2  Denio, 
193. 


416  ADMTNISTEATION  OF  CTVTL  JUSTICE. 

To  prove  that  the  party  sought  to  be  charged  brought 
or  prosecuted  the  suit,  it  will  be  suflBcient  where  the  assign- 
ment is  absolute  in  its  terms  so  that  the  plaintiflf  on  the 
record  no  longer  had  any  interest,  to  show  that  the  assignee 
knowingly  suftered  the  suit  to  proceed  for  his  benefit,^  but 
Avhere  the  party  has  only  a  lien  or  collateral  interest,  some 
act  of  his  in  bringiug  or  prosecuting  the  suit  must  be 
shown,  such  as  his  having  retained  an  attorney  for  that 
purpose,  or  sanctioned  the  act  of  an  assumed  agent  in  re- 
taining him,  or  agreeing  to  indemnify  the  nominal  plaintiff ;' 
the  mere  fact  that  he  occasionally  inquires  as  to  its  pro- 
gress, of  the  attorney  who  holds  it  for  prosecution,  admits 
himself  to  be  interested  and  advises  and  urges  the  suit, 
are  not  of  themselves  enough  to  charge  him  with  the 
defendant's  costs.^ 

If  the  assignee  obtain  a  judgment  in  favor  of  the  assignor, 
or  take  an  assignment  of  the  judgment,  he  is  not  answer- 
able for  costs  in  error ;  he  cannot  be  said  to  prosecute  in 
the  proceeding  to  review.^ 

The  next  proposition  to  be  established  to  charge  a  per- 
son under  the  statute,  is  that  he  is  the  assignee,  or  the 
person  beneficially  interested  in  the  recovery/  An  assignee 
is  liable,  although  the  assignment  to  him  was  invalid  or 
illegal.^  So,  where  a  person  gives  notice  that  he  is  the 
absolute  assignee  of  the  demand  in  suit,  he  will  not  be 
allowed  to  deny  it,  in  order  to  avoid  being  charged  with 
costs.^  If  the  party  is  shown  to  be  interested  by  an 
assignment  by  way  of  mortgage  or  security,  or  upon  trust, 
either  in  the  whole  or  any  portion  of  the  cause  of  action, 
he  will  be  deemed  a  party  beneficially  interested  within 
the  statute." 

The  defendant.  A  party  in  interest  defending  an  action 
in  the  service  of  another  is  not  liable  to  the  plaintiff  for 
costs,  with  the  single  exception  of  a  landlord  defending  an 
action  of  ejectment  in  the  name  of  his  tenant.*  Where  a 
landlord,  or  other  person,  who  is  entitled  by  statute  to  be 
substituted  in  the  place  of,  or  joined  with,  the  defendant, 
in  an  action  of  ejectment,  who,  without  causing  himself  to 
be  made  a  party,  defends  such  suit  unsuccessfully  in  the 


'  20  Wend.,  632 ;  15  Abb.  Pr.,  194.  '  12  N  Y    32 

"  1  Hill,  629.  6  1  Denio.  656. 

»  19  Wend,  151.  '  i  Hill,  629;  1  Denio,  656:  15  Abb., 
*  1  Denio,  657  ;  1  Hill,  629;  20  Wend.,  194;  5  How.  Pr.,  319. 

630.  »  18  Wend.,  674. 


COSTS.  417 

name  of  the  original  defendant,  will  be  ordered  to  pay 
the  costs  of  the  plaiDtiflP,  after  execution  against  the 
defendant  on  the  record,  has  been  returned  unsatisfied.^ 

Parties  to  the  record  are  still  liable  to  costs,  to  the  final 
result,  notwithstanding  they  may  have  assigned  their 
interests.^ 

Liability,  how  ascertained.  The  better  practice  is  to  issue 
an  execution  upon  the  judgment  recovered,  and  if  that  is 
returned  unsatisfied,  to  prepare  an  affidavit  showing  that 
fact  and  the  facts  upon  which  it  is  claimed  that  the  person 
not  a  party,  is  liable,  and  upon  that  affidavit,  upon  due 
notice  to  the  person  sought  to  be  charged,  move  that  he 
should  be  charged  with  the  costs  of  the  action. 

Hoiv  enforced.  The  statute  declares  that  the  payment  of 
such  costs  may  be  enforced  by  attachment  f  but  the  legis- 
ture  has  ijrovided  that  such  costs  shall  be  collected  by 
execution.*  The  same  practice  should,  therefore,  be  pur- 
sued, as  is  hereafter  shown  to  be  piu-sued  in  collecting 
interlocutory  costs. 

But  the  Code  was  enacted  since  the  statute  of  1847,  and 
by  it  all  statutory  provisions  inconsistent  with  it  are 
repealed.^  So  that,  where  a  person  is  made  liable  for 
costs  by  force  of  section  321  of  the  Code,  it  would  seem 
that  payment  thereof  may  still  be  enforced  by  attachment. 
In  such  cases,  therefore,  the  order  charging  the  jjersou 
with  costs  should  be  served  upon  him  and  the  payment 
of  the  costs  demanded.  If  the  costs  are  not  i)aid  within 
twenty  days  thereafter,  or  such  other  time  as  shall  be 
fixed  by  the  order,  a  motion  for  an  attachment  can 
be  made.  The  practice  in  such  proceedings  has  already 
been  considered  in  the  chapter  upon  proceedings  to  punish 
contempts,  &c. 

Liability  of  guardian  ad  litem. 

Under  the  former  practice  an  infant  plaintiff  sued  by  a 
next  friend,  and  an  infant  defended,  by  guardian ;  but  the 
Code  now  provides  for  a  guardian  for  both  cases.^  The 
guardian  for  the  plaintiff  only  is  liable  for  costs,'^  and  this 
liability  continues  through  all  the  proceedings  in  the 
cause,  as  well  in  the  court  where  the  action  is  brought  as 


'  5  N.  T.,  558 ;  2  R.  S.,  341.  *  Code,  §  468. 

»  2  How.  Pr.,  147.  "  Code,  §  116. 

'2R.  S.,  619.  'Code,  §316. 

♦  L.  1847,  ch.  390. 

II.— 53 


418  ADMINISTRATION  OF  CIVIL  JUSTICE. 

on  appeal.'  Where  a  judgment  is  recovered  against  an 
infant  plaintiff,  and  an  execution  has  been  returned  un- 
satisfied, the  taxable  costs  should  be  demanded  of  the 
guardian  by  whom  the  infant  appeared  in  the  action,  and 
if  they  are  not  paid  by  such  guardian  within  twenty  days 
after  such  demand,  an  application  can  be  made  for  an 
attachment  against  him.=^  It  may  not  be  necessary  to  first 
issue  an  execution  against  an  infant,  nor  to  wait  twenty 
days  after  the  demand  for  the  costs  before  applying  for 
the  attachment,  but  this  is  thought  to  be  the  better 
practice. 

Liability  of  relator. 

A  relator  joining  with  the  people  as  jjlaintiff  in  prose- 
cuting a  suit,  is  in  the  first  instance  liable  for  the  defend- 
ant's costs,  and  they  cannot  be  recovered  against  the 
people  till  after  the  execution  issued  against  such  relator 
shall  have  been  returned  unsatisfied^  The  same  rule 
applies  to  any  person  joined  with  the  people  as  plaintiff. 


Liability  in  actio)is  by  the  peojyle. 

Costs  can  only  be  recovered  against  the  people  in  actions 
that  have  been  prosecuted  by  some  officer  duly  authorized.'* 
In  such  cases  the  people  are  liable  for  costs  in  the  same 
cases,  and  to  the  same  extent,  as  if  such  suit  or  proceed- 
ing was  instituted  by  an  individual.^  Where  the  defend- 
ant believes  he  is  entitled  to  costs  against  the  people,  he 
should  present  an  authenticated  copy  of  the  record  of 
judgment,  or  of  the  order  adjudging  such  costs,  with  a 
taxed  bill  thereof,  to  the  attorney-general,  who  will,  if  it 
is  a  proper  case,  certify  that  such  suit  or  proceeding  was 
duly  instituted  as  by  law  required.  Upon  presenting 
these  papers  to  the  comptroller,  it  is  his  duty  to  draw 
upon  the  treasurer  for  the  amount  of  the  taxed  costs.^  K 
the  attorney-general  refuses  to  make  his  certificate,  or  the 
comptroller  to  draw  his  warrant,  he  may  be  compelled  by 
mandamus. 


'  Hummel  v.  Brown,   MSS.,  3d  Dist.,     *  Code,  §  319. 
gen.  t.  '  2  R.  S.,  619. 

»  Code,  §  316.  •  2  R.  S.,  553 ;  17  How.  Pr.,  14. 

'  Code,  g  320 ;  2  R.  S.,  619. 


COSTS.  419 

When  alloxoed  of  course  to  the  plaintiff . 
In  actions  as   to   real  property.    Where   the    plaintiff 
recovers,  he  is  entitled  to  costs  in  the  following  cases  : 

1.  Where  the  action  is  for  the  recovery  of  real  pro- 
perty.^ This  embraces  only  those  cases  where  the  imme- 
diate object  of  the  action  is  to  recover  real  property,  snch 
as  actions  of  ejectment,  and  does  not  include  cases  merely 
involving  the  questions  as  to  possession,  or  actions  to 
recover  damages  for  injury  to  the  possession. 

2.  When  a  claim  of  title  to  real  property  arises  on  the 
pleadings;^  that  is  where  the  issue  joined  presents  an 
issue  as  to  the  ownership  of  real  estate ;  but  not  where  the 
gist  of  the  action  is  an  iujury  to  the  possession,  so  that 
evidence  of  mere  possession  would  enable  the  plaintiff  to 
maintain  it.  An  allegation  of  owner  ship  and  possession 
made  in  the  complaint,  and  denied  ui  the  answer,  does 
not  enlarge  the  issue,  so  as  to  entitle  the  party  to  costs,  the 
issue  must  practically  and  substantially  involve  a  claim 
of  title,  and  not  merely  a  question  of  possession.^  Where 
such  an  issue  is  joined  by  the  pleadings,  the  plaintiff  is 
entitled  to  costs  if  he  recover,  notwithstanding  the  defend- 
ant admits  the  title  on  the  trial.^ 

If  one  issue  involves  title,  and  there  is  another  that 
does  not,  the  plaintiff  is  still  entitled  to  costs  if  the  ver- 
dict is  in  his  favor  j"*  but  where  the  title  is  in  issue,  and  is 
found  to  be  in  the  defendant,  the  plaintiff'  is  not  for  that 
reason  entitled  to  costs,  although  the  verdict  is  in  his 
favor,  for  some  chattel  also  involved  in  the  issue.^ 

A  claim  to  an  easement  in  plaintiff's  land  by  prescrip- 
tion, draws  in  question  the  title  to  land,  and  entitles  the 
plaintiff  to  costs,  as  where  the  defendant  sets  up  a  right 
of  way  on  plaintiff's  land  f  so  where  the  defendant 
attempted  to  make  out  a  prescriptive  right  to  overflow 
plaintiff's  land ;''  so  where  the  defendant  gave  notice  of 
justification  in  trespass  to  lands,  and  endeavored  to  prove 
a  right  of  common  of  estovers  as  a  tenant  f  so  where  in  an 
action  for  an  assault  and  battery,  the  defendant  pleaded  that 
he  had  used  the  force  in  the  defense  of  his  own  possession, 


»  Code,  §  304.  '  7  How.  Pr.,  H. 

»20  Barb.,   315;    10  Johns.,  302;  16     '  IJohns.,  UG  ;  2  Id.,  185. 

How.,  478.  '3  Cow.,  382. 

»  How.  Pr.,  131 ;  1  Id.,  180.  *  6  Wend.,  539. 

*  8  How.  Pr.,  131. 


420  ADMINISTRATION  OP  CIVIL   JUSTICE. 

and  the  plaintiff,  in  Ms  reijlication,  stated  that  the  place 
where  the  assault  was  committed  was  a  public  highway, 
upon  which  the  defendant  took  issue  ;^  so  where  the  issue 
involves  the  question  of  right  of  property  in  growing 
trees  and  shrubs,  or  the  grantor's  right  to  enter  under  a 
reservation  in  an  agreement  between  him  and  the  grantee.'* 

Where  the  right  of  the  defendant  is  founded  on  a  mere 
license,  it  does  not  bring  in  issue  a  claim  of  title.^ 

3.  When  it  is  certified  by  the  court  that  a  claim  of  title 
to  real  property  came  in  question  at  the  trial.*  The  certi- 
ficate of  the  judge  who  tried  the  cause  is  the  only  evidence 
that  can  be  received  as  to  whether  or  not  the  title  came  in 
question  on  the  trial.^  Where  the  trial  is  before  a  referee, 
he  should  make  the  certificate.^ 

Where,  on  the  trial,  the  same  matters  come  in  question 
that  would,  if  set  up  in  the  iDleadings,  have  formed  an 
issue  upon  a  claim  of  title,  the  judge  should  certify  that  a 
claim  of  title  to  real  property  came  in  question ;  and  he 
should  also  so  certify  where  the  action  is  for  trespass  upon 
lands,  and  the  plaintiff  has  not  actual  possession,  so  that 
it  becomes  necessary  to  establish  constructive  possession 
at  the  trial,  by  showing  title.^  And  where,  from  the  neces- 
sity to  prove  title  by  means  of  the  absence  of  actual  pos- 
session, the  plaintiff  brings  his  action  in  the  supreme  court, 
the  plaintiff's  right  to  costs  will  not  be  defeated  by  admit- 
ting the  title  on  the  trial  f  but  where  there  is  evidence  of 
possession,  and  that  is  enough,  the  plaintiff,  by  volunteer- 
ing evidence  as  to  title,  does  not  become  entitled  to  costs.' 

In  actions  to  recover  the  possession  of  personal  property 
the  plaintiff  is  entitled  to  costs  if  he  recover  fifty  dollars 
damages;  if  he  recover  less  than  fifty  dollars,  he  reco- 
vers no  more  costs  than  damages,  unless  he  recovers 
also  property,  the  value  of  which,  with  the  damages, 
amounts  to  fifty  dollars,  or  the  x^ossession  of  property  be 
adjudged  to  him,  the  value  of  which,  with  the  damages, 
amounts  to  fifty  dollars ;  and  such  value  must  be  deter- 
mined by  the  jury,  court  or  referee  by  whom  the  action  is 
tried.^"    K  he  recover  less  than  fifty  dollars  damages,  and 

'  2  Barb.,  432.  «  Code,  §  272. 

»  8  Barb.,  567.  '  7  Wend.,  495. 

'3  Johns.,  450;  10  Wend.,  563;  1  »  8  Cow..  115. 

Cow.,  568 ;  15  Abb.,  449.        '  10  How.  Pr.,  406. 
*  Code,  g  304.  "  Code,  §  304. 

'  8  How.  Pr.,  131 ;  2  Code  R.,  152. 


COSTS.  421 

the  damages  and  value  of  the  property  does  not  amount 
to  fifty  dollars,  he  only  recovers  as  much  costs  as  damages  ; 
as  where  the  action  was  for  the  recovery  of  a  horse,  and 
the  plaintiff  recovered  six  cents  damages,  and  the  value  of 
the  horse  was  assessed  at  twenty-five  dollars,  he  was  only 
entitled  to  six  cents  costs.^  Where  a  plaintiff  has  a  verdict  for 
the  return  of  a  portion  of  the  property,  the  value  of  which, 
with  the  damages  recovered,  amounts  to  over  fifty  dollars, 
and  the  defendant  has  a  verdict  for  the  residue,  each  party 
is  entitled  to  costs  against  the  other.^ 

In  actions  of  which  a  court  of  justice  of  the  peace  has 
no  jurisdiction,  if  the  plaintiff  recover,  he  is  entitled  to 
costs.^  This  embraces  actions  in  which  the  people  of  this 
state  are  a  party,  excepting  for  penalties  not  exceeding 
two  hundred  dollars  ;  actions  where  the  title  to  real  pro- 
perty shall  come  in  question  ;  actions  for  an  assault,  battery, 
false  imprisonment,  libel,  slander,  malicious  prosecution, 
crimiual  conversation,  seduction  and  actions  against  exe- 
cutors or  administrators  as  such  ;  also,  actions  for  seamen's 
wages,  where  the  action  is  against  the  owner,  master  or 
commander  of  the  ship  ;^  also,  actions  against  foreign  cor- 
porations ;  also,  actions  involving  a  matter  of  account, 
where  the  sum  total  of  the  accounts,  proved  to  the  satis- 
faction of  the  justice,  shall  exceed  four  hundred  dollars ; 
payments  are  not  included  in  making  up  the  sum  that 
ousts  the  justice  of  jurisdiction.^  Demands  put  in  issue 
by  the  pleadings,  but  admitted  on  the  trial,  are  to  be 
regarded  as  demands  proved.*^  Where  the  action  is  brought 
directly  in  the  court  of  record,  the  plaintiff  is  entitled  to 
costs,  although  he  recovers  less  than  fifty  dollars,  if  the 
demands  actually  contested  are  over  four  hundred  dollars,^ 
and  where  accounts  between  parties  have  been  settled,  but 
in  an  action  brought  in  the  Supreme  Court  for  the  balance 
of  such  accounts,  they  are  re-examined,  and  the  errors  are 
corrected,  the  plaintiff,  though  he  recovers  less  than  fifty 
dollars,  is  entitled  to  costsJ 

In  actions  for  the  recovery  of  money  where  the  plaintiff 
shall  recover  fifty  dollars,  he  recovers  costs  except  that  in 
an  action  for  assault,  battery,  false  imprisonment,  libel, 
slander,  malicious  prosecution,  criminal  conversation  or 


'  8  How.  Pr.,  238.  *  2  E.  D.  Smith,  78. 

»  14  Abb.,  319.  '  3  Abb.  Pr.,  365. 

*  Code,  g  304.  '  18  How.  Pr.,  177. 

♦  1  HUt. 


422  ADMINISTRATION  OF  CIVIL   JUSTICE. 

seduction  of  the  plaintiff ;  if  he  recover  less  than  fifty  dollars 
damages,  he  can  recover  no  more  costs  than  damages,  and 
except  also  where  several  actions  are  brought  on  one  bond, 
recognizance,  promissory  note  or  in  any  other  case  for  the 
same  cause  of  action  against  several  parties  who  might 
have  been  joined  as  defendants  in  the  same  action,  no  costs 
other  than  disbursements  shall  be  allowed  to  the  plaintiff 
in  more  than  one  of  said  actions,  which  shall  be  at  his 
election,  provided,  that  the  party  or  parties  proceeded 
against  in  such  action  or  actions,  shall,  at  the  time  of  the 
commencement  of  the  previous  action  or  actions  have 
been  within  this  state  and  not  secreted.^ 

Where  the  plaintiff's  right  to  costs  depends  upon  his 
recovering  fifty  dollars  or  more,  he  must  recover  that  sum 
or  he  fails  as  to  costs,  no  matter  whether  the  amount  of 
his  recovery  is  reduced  by  disproving  a  portion  of  his 
claim,  or  by  a  set-off'  or  counterclaim.  Where  the  plain- 
tiff's right  to  a  judgment  is  derived  from  a  stipulation,  it 
is  to  be  deemed  a  recovery,  and  he  is  entitled  to  costs  if  the 
amount  is  suificient,  though  nothing  is  said  as  to  costs  in 
the  stipulation.^ 

Where  there  are  several  plaintiffs  they  recover  but  one 
bill  of  costs. 

Where  there  are  several  defendants,  and  the  plaintiff 
recovers  against  any  of  the  defendants,  and  he  has  such 
a  recovery  as  entitles  him  to  costs,  he  is  entitled  to  judg- 
ment for  such  costs  against  the  parties  against  whom  he 
has  been  successful. 

Where  some  defendants  suffer  default  and  others  litigate, 
and  the  plaintiflf's  action  is  upon  a  joint  liability,  all  the 
defendants  against  whom  the  recovery  is  had,  are  equally 
liable  for  the  ivhole  costs,^  and  this,  it  seems,  is  so,  although 
the  action  is  upon  a  joint  and  several  liability.* 

.Efect  of  a7i  offer  or  tender  upon  2)lcii?itiff'^s  right  to  costs. 
Offer.  As  has  been  shown  the  defendant  may,  after  an 
action  has  been  commenced  offer  a  compromise.^  When 
this  offer  is  made  and  not  accepted,  the  plaintiff  must 
recover  a  more  favorable  judgment  than  that  oftered,  or 
he  will  not  recover  costs  after  the  offer,  but  on  the  con- 
trary will  be  liable  to  pay  costs  from  the  time  of  the  offer," 


>  Code,  §  304.  «  17  How.  Pr.,  56. 

'  1  Hilt,  235.  »  Ante,  Vol.  I,  527. 

"  11  How.  Pr.,  55.  •  Code,  §  385. 


COSTS.  423 

and  where  the  action  is  for  the  recovery  of  money  and  the 
j)laiutiir  accepts  an  offer  of  less  than  fifty  dollars,  the  de- 
fendant is  entitled  to  costs.^ 

AVhen  an  offer  is  made  by  one  or  more  defendants,  and 
the  suit  is  so  situated  that  the  plaintiff  may  enter  judg- 
ment against  all  the  defendants,  he  should  accept,  unless  he 
can  get  a  more  favorable  judgment  against  them  all  than 
that  offered,^  but  in  other  cases  the  offer  of  one  defendant 
would  not  be  good,  as  he  has  no  authority  to  bind  the 
other  defendants,  and  the  plaintiff  is  not  bound  to  accept 
a  judgment  against  him  alone,  and  if  he  does  not  accept  the 
offer  and  ultimately  recovers  against  more  than  the  one 
defendant,  he  is  entitled  to  costs ;  the  plaintiff"  must,  to 
entitle  him  to  costs,  recover  as  much  as  the  offer  exclusive 
of  subsequently  accruing  interest.^  Where  the  defendants 
make  an  offer  in  which  a  set-off  or  counterclaim  is  set 
up,  and  the  plaintiff  recovers  less  than  the  amount  of  the 
offer,  he  maj'  still  recover  costs  if  the  judgment  extin- 
guishes such  a  counterclaim  or  set-oft'  as  to  render  the 
judgment  more  favorable  to  the  plaintiff  than  that  offered."* 
Where  it  is  so  intended,  the  ofter  should  state  that  the 
amount  proposed  is  over  and  above  the  set-off  or  counter- 
claim, although  it  has  been  said  that  this  is  the  effect  of  a 
general  ofter.^  Where  the  plaintiff  recovers  more  than  the 
offer,  he  recovers  damages  and  costs  the  same  as  if  no  offer 
had  been  made ;  if  he  does  not  recover  a  more  favorable 
judgment,  he  recovers  costs  up  to  the  time  of  the  offer, 
and  the  defendant  recovers  costs  from  that  time. 

Tender.  Where  the  action  is  to  recover  a  sum  certain, 
or  which  may  be  reduced  to  a  certainty  by  calculation,  or 
for  a  casual  or  involuntary  trespass  or  injury,  the  defend- 
ant, in  any  stage  of  the  proceedings  before  trial  in  such 
cases,  or  before  such  damages  shall  have  been  assessed,  or 
before  judgment  rendered  in  an  action  of  debt,  may  ten- 
der to  the  i)laintiff',  or  his  attorney,  any  sum  of  money 
which  such  defendant  shall  conceive  sufticient  amends  for 
the  injury  done  for  which  such  action  or  proceeding  was 
instituted,  or  sufficient  to  pay  the  plaintift''s  demand, 
together  with  the  costs  of  such  action  or  proceeding  to  the 
time  of  making  such  tender.^  If  it  shall  appear  from 
the  result  of  the  trial  that  such  a  tender  has  been  made, 


'  10  How.  Pr.,  552.  *  7  How.  Pr.,  324;  8  Id.,  88;  15Id.,4?0. 

»  1  Code  Rep.  (N.  S.),  159.  '  1  Duer,  G94. 

'  26  How.  Pr.,  398.  "  2  R.  S.,  554. 


424  ADMINISTRATION   OF   CIVIL  JUSTICE. 

tbc  plaintiff  will  not  be  entitled  to  recover  any  interest 
accrued  or  costs  incurred  since  the  tender,  but  shall  be 
liable  for  costs  incurred  since  that  time.  If  the  tender  is 
accepted  and  the  plaintiff  still  proceeds,  he  shall  only 
recover  the  residue  that  may  be  found,  over  and  above  the 
tender,  and  the  right  to  costs  will  be  determined  by  that 
residue. 

When  aUowed  to  the  defendant. 

In  that  class  of  actions  in  which  the  plaintiff  is  entitled 
to  costs  of  course  if  he  recovers,  costs  are  allowed  of  course 
to  the  defendant,  if  the  plaintiff  is  not  entitled  to  costs 
therein.^ 

Where  there  are  several  defendants,  and  a  part  of  them 
recover,  they  are  entitled  to  costs,  though  the  plaintiff 
may  recover  against  others.^  Several  defendants  are  en- 
titled to  costs  of  course  against  the  plaintiff',  but  if  more 
than  one  bill  is  claimed,  leave  must  be  obtained,  on 
motion,  to  tax  costs  for  each  defendant.^  It  is  in  the  dis- 
cretion of  the  court  whether  it  will  grant  more  than  one 
bill.  If  it  appears  that  the  several  defendants  are  not 
united  in  interest,  and  made  separate  defenses  by  separate 
answers,  the  court  will  usually  award  costs  to  each  of  such 
defendants  as  have  judgments  in  their  favor.* 

It  has  been  said  that  each  defendent  is  presumptively 
entitled  to  a  full  bill  of  costs,  unless  it  appears  that  the 
defenses  were  served  for  the  sake  of  costs  f  but  this  is  not 
believed  to  be  the  law.  On  the  contrary,  it  is  thought 
that  the  Code  now  asserts  the  only  rule  by  which  to  deter- 
mine the  right  of  several  defendants  to  costs,  and  that  is 
that  the  defendants  must  not  be  united  in  interest,  and 
must  make  separate  defenses  by  separate  answers.  The 
fact  that  the  same  attorney  is  employed  seems  to  be  no 
longer  an  important  consideration.^ 

When  both  parties  are  aUowed  costs. 

When  there  are  two  or  more  distinct  causes  of  action  in 
separate  counts,  the  plaintiff"  shall  recover  costs  on  those 
issues  which  are  found  for  him,  and  the  defendant  on 


'  Code,  §  305.  ■•  Code,  §  306. 

'  9  X.  T.,  549.  *  7  Bosw..  699;  20  How.  Pr.,  511. 

*  13  How.  Pr.,  141.  •  16  How.  Pr.,  91. 


COSTS.  425 

those  whicli  are  found  in  his  favor.^    This  is  a  provision 
of  the  Eevised  Statutes  that  is  said  to  be  still  in  force. 

Costs  in  the  discretio?i  of  the  court. 

In  all  that  class  of  actions  where  neither  party  is  entitled 
to  costs  as  a  matter  of  right,  they  are  awarded  according 
to  the  discretion  of  the  court.^  This  embraces  those  that 
were  formerly  suits  in  chancery,  and  the  court  in  these 
cases  can  give  costs  to  either,  both  or  neither  parties,  or 
it  may  charge  the  costs  upon  the  estate  involved.  In  these 
cases  the  direction  as  to  costs  should  be  embraced  in  the 
final  decision,  or  neither  party  will  be  entitled  to  costs,  and 
the  court,  unless  it  has  expressly  reserved  the  question, 
will  not,  thereafter,  listen  to  an  application  for  costs.^ 

As  a  general  rule,  the  party  found  to  be  in  the  wrong 
will  be  charged  with  costs.  Where  the  decision  shows 
that  both  parties  claimed  more  than  they  were  entitled  to, 
neither  will  be  allowed  costs,  and  where  neither  party 
appears  to  be  in  fault,  and  the  litigation  appears  to  have 
been  necessary  in  determining  the  rights  of  the  parties  to 
an  estate,  the  costs  of  both  parties  will  be  charged  upon 
the  estate. 

Costs  will  not  be  allowed  to  a  plaintiff  where  his  suit  is 
unsuccessful,  but  he  will  be  charged  with  costs.*  Nor  will 
he  be  allowed  costs  where  it  appears  that  the  suit  was 
unnecessary.^ 

When  the  plaintiff  recovers  costs  in  an  action,  the  rate 
of  allowance  is  as  follows : 

1.  For  all  proceedings  before  trial,  including  actions 
where  judgment  on  failure  to  answer  can  only  be  taken  on 
application  to  the  court,  twenty-five  dollars ;  where  judg- 
ment may  be  taken  upon  failure  to  answer  without  appli- 
cation to  the  court,  ten  dollars ;  for  each  additional  defend- 
ant served  with  process,  not  exceeding  ten,  two  dollars; 
and  for  each  necessary  defendant  in  excess  of  that  number 
served  with  process,  one  dollar.^ 

It  will  be  observed,  that  as  the  Code  now  stands,  there 
is  no  additional  allowance  to  the  plaintiff  for  proceedings 
subsequent  to  the  notice  of  trial,  and  before  trial,  except 
for  such  services  as  are  specially  mentioned. 


>  2  R  S.,  617.  *  2  Edw.,  196. 

*  Code,  §  306.  '  3  Paige.  509. 

*  12  Johns.,  500.  *  Code,  §  307. 

n.— 54 


42G  ADMINISTRATION  OF   CIVIL  JUSTICE. 

The  question  as  to  which  sum  the  plaintiff  is  entitled, 
for  i)roceedings  before  trial,  depends  upon  the  question 
whetlier  the  nature  of  the  action  is  such  as  to  require  an 
application  to  the  court  for  judgment,  in  case  of  default.^ 

The  charge  for  additional  defendants  cannot  be  taxed 
except  where  it  was  actually  necessary  to  make  such  per- 
sons defendants ;  it  is  not  enough  to  show  it  was  believed 
they  were  necessary  or  that  they  appeared  to  be  necessary .^ 

2.  The  defendant's  costs  are,  for  proceedings  before 
notice  of  trial,  ten  dollars,  and  for  subsequent  proceedings 
before  trial,  ten  dollars. 

The  defendant  is  entitled  to  the  costs  for  proceedings 
before  notice  of  trial  whenever  he  has  taken  any  proceed- 
ing in  the  cause ;  his  retaining  an  attorney  is  a  proceeding 
in  the  cause.^  The  item  for  proceedings  before  trial  is  not 
taxable  till  the  cause  has  actually  been  noticed  for  trial,* 
nor  can  it  be  taxed  more  than  once  for  all  proceedings  be- 
fore an  actual  trial  has  been  had.'  It  is  not  chargeable 
where  a  cause  is  postponed  on  payment  of  costs,^  but  is 
chargeable  in  the  costs  on  overruling  a  demurrer,"  or  upon 
an  order  setting  aside  a  verdict  on  payment  of  costs.* 

3.  Either  party  entitled  to  costs  can  tax  in  a  case  where 
a  new  trial  shall  be  had  for  all  proceedings,  after  the  grant- 
ing of  the  new  trial,  and  before  such  new  trial  is  had, 
twenty-five  dollars.^ 

4.  Either  party  entitled  to  costs  can  tax  for  attending 
upon  and  taking  the  deposition  of  a  witness  conditionally 
or  attending  to  perpetuate  his  testimony,  ten  dollars  ;  for 
drawing  interrogations  to  annex  to  a  commission  for  the 
taking  of  testimony,  ten  dollars ;  for  attending  the  exami- 
nation of  a  party  before  trial,  ten  dollars  ;  for  making  and 
serving  a  case  containing  exceptions,  twenty  dollars,  except 
that  when  the  case  shall  necessarily  contain  more  than  fifty 
folios,  there  shall  be  allowed  ten  dollars  in  addition  thereto ; 
and  for  making  and  serving  amendments  thereto,  ten  dol- 
lars.^ 

5.  Either  party  entitled  to  costs  can  tax  for  every  term 
or  circuit,  not  exceeding  five  circuits  or  special  terms  at 
which  the  cause  is  necessarily  on  the  calendar  and  is  not 


*  8  How.  Pr.,  271 ;  11  Id.,  500 ;  5  Duer,  '  6  How.,  404. 

658.  «  6  How.,  418;  Code,  §  314. 

»  17  How.  Pr.,  348.  '  3  Sandf.,  75G. 

'  1  C.  R.  N.  S.,  236;  4  Hill,  166.  *  6  How.  Pr.,  265,  311,  465. 

*  4  How.  Pr.,  304.  »  Code,  §  307. 


COSTS.  427 

tried,  or  is  postponed  by  order  of  tlie  court,  ten  dollars.^ 
It  would  seem  that  under  the  Code,  as  now  amended, 
there  can  be  little  doubt  as  to  the  case  in  which  the  right 
to  tax  terra  fee  is  allowable.  If  the  cause  is  necessarily 
on  the  calendar,  and  is  not  tried,  this  fee  is  properly 
changeable.  A  cause  is  necessarily  on  the  calendar  when 
placed  there  for  the  purpose  of  referring  it.^  A  cause  can- 
not be  said  to  be  necessarily  on  the  calendar  when  it  was 
discontinued  before  the  circuit,'  nor  where  the  plaintiff 
had  noticed  the  cause,  had  put  it  on  the  calendar  for  two 
terms,  and  then  made  a  successful  motion  for  judgment 
on  the  answer,  as  frivolous  ;*  but  as  a  general  rule  a  cause 
is  necessarily  on  the  calendar  when  the  cause  is  ready  for 
trial  upon  an  issue  joined,  and  it  is  regularly  put  there  by 
the  party  noticing  it.^ 

G.  Either  party  entitled  to  costs  can  tax  for  the  trial,  if 
an  issue  of  law,  twenty  dollars  ;  for  every  trial,  if  an  issue 
of  fact,  thirty  dollars,  and  where  the  trial  shall  necessarily 
occupy  more  than  two  days,  ten  dollars  in  addition 
thereto.^ 

A  trial  is  the  judicial  examination  of  the  issues  between 
the  parties,  whether  they  be  issues  of  fact  or  law. 

Where  the  plaintiff,  in  an  action  at  issue,  fails  to  appear 
when  the  cause  is  called  on  the  calendar,  and  the  defend- 
ant takes  an  order  that  the  complaint  be  dismissed,  it  is 
held  to  be  a  trial  for  the  purpose  of  costs.'  So,  in  a  suit  for 
an  accounting,  a  trial  fee  is  taxable  when  the  cause  has 
been  heard,  so  far  as  to  determine  that  an  account  should 
be  taken.^  Where  an  issue  of  fact  is  brought  to  trial,  and 
for  any  cause  is  again  withdrawn,  or  being  unable  to  agree, 
the  jury  are  discharged  without  rendering  a  verdict;  or 
where  there  is  a  judgment  subject  to  the  opinion  of  the 
court,  or  a  special  verdict,  the  prevailing  party  is  entitled 
to  a  trial  fee.^  It  may  be  safely  asserted  that  the  prevail- 
ing party  is  entitled  to  a  trial  fee  as  often  as  the  issue 
joined  between  the  parties,  is  brought  to  a  hearing  and 
determination.  No  trial  fee  is  taxable  where  judgment  is 
obtained  upon  motion,  upon  the  ground  that  the  answer 


1  Code,  §  307.  "  Code,  §  307 . 

«  1  Code  R.,  134;  9  How.,  332.  '  4  How.  Pr.,  123;  2  Abb.,  377. 

»  17  How.  Pr.,  469.  « 4  Sandf.,  688. 

*  5  Duer,  658.  "  8  How.,  4. 

*  9  How.  Pr.,  332. 


428  ADMCaSTBATION  OF  CIVIL  JUSTICE. 

or  demurrer  is  frivolous.^    Kor  in  any  case  where  issue  has 
not  been  joined.^ 

Additional  allowance. 

In  addition  to  the  allowances,  the  plaintiff  may  tax,  if  he 
recover  a  judgment  in  any  action  for  the  partition  of 
real  property,  or  for  the  foreclosure  of  a  mortgage,  or  in 
any  action  in  which  a  warrant  of  attachment  has  been 
issued,  or  for  an  adjudication  upon  a  will  or  other  instru- 
ment in  writing,  and  in  proceedings  to  compel  the  deter- 
minations of  claims  to  real  property,  the  sum  of  ten  per 
cent,  on  the  recovery,  as  provided  in  the  case  of  difficult 
and  extraordinary  cases,  for  any  amount  not  exceeding 
two  hundred  dollars ;  an  additional  sum  of  five  per  cent, 
for  any  additional  amount  not  exceeding  four  hundred  dol- 
lars ;  and  an  additional  sum  of  two  per  cent  for  any  addi- 
tional amount  not  exceeding  one  thousand  dollars.  In 
the  actions  above  named,  if  the  same  shall  be  settled  before 
judgment  therein,  like  allowances  are  made  upon  the  amouut 
paid  or  secured  upon  such  settlement,  at  one  half  the  rates 
above  specified.^ 

This  allowance  is  taxable  as  a  matter  of  right,  in  proper 
cases,  where  a  judgment  has  been  recovered  or  the  case 
has  been  settled  before  judgment.  It  is  the  duty  of  the 
clerk,  in  the  adjustment  of  costs  in  such  ca«es,  to  insert  in 
the  entry  of  the  judgment  such  percentage  as  a  part  of  the 
sum  of  costs  allowed  by  the  Code^  When  the  proceeding 
has  been  by  attachment,  the  allowance  is  proper,  whether 
any  property  has  been  attached  or  not  ;^  but  where  an 
attachment  was  issued  and  served,  and  afterwards  set 
aside,  a.  plaintiff  is  not  entitled  to  this  allowance.^ 

AUoioatice  in  difficult  and  extraordinary  cases. 

In  difficult  and  extraordinary  cases,  ivliere  a  trial  has 
heen  had,  except  in  the  actions  above  mentioned  (other 
than  those  for  the  partition  of  real  estate),  and  in  actions 
or  proceedings  for  the  partition  of  real  estate,  the  court,  in 
its  discretion,  may  make  a  further  allowance  to  any  party, 
not  exceeding  five  per  cent,  upon  the  amount  of  the  recov- 
ery or  claim  or  subject  matter  involved.^ 

'  1  How.  Pr.,  97 ;  1 2  Id.,  26,  399 ;  22  Id.,  ♦  14  How.  Pr.,  300. 

470;  24  Id.,  478.  *  ^5  jj^^  p^^  224. 

'  11  How.  Pr.,  500.  •  26  How.  Pr.,  95. 

•  Code,  §  308.  '  Code,  §  309. 


COSTS.  429 

There  is  no  settled  rule  by  which  to  determine  what  are 
diflficult  and  extraordinary  cases.  Each  judge  exercise  his 
best  judgment  in  determining  the  same,  as  will  be  seen  by 
examining  their  decisions  upon  the  subject. 

Whilst  the  legislature  choose  to  leave  this  right  of  a 
party  to  indemnity  by  way  of  costs,  to  the  undefined  discre- 
tion of  the  court,  he  must  abide  the  uncertainty  that  exists. 
This  allowance  can  only  be  made  by  the  court  of  original 
jurisdiction,  and  in  reference  to  the  trial  in  that  court.^ 
The  application  for  an  allowance  must  be  made  before 
judgment  is  entered  f  it  must  be  made  to  the  court,  not 
at  chambers.^  And  where  the  trial  is  by  the  court  or  jury, 
it  must  be  made  at,  the  same  court*  and  to  the  same  justice 
who  tried  the  cause,Mn  which  case  no  notice  of  the  motion 
is  necessary.*^  If  the  cause  was  tried  by  a  referee,  then  the 
application  is  made  to  the  same  court  in  which  the  cause 
is  pending  by  sijecial  motion,  in  which  case  the  certificate 
of  the  referee  is  a  proper  paper  amongst  others  on  which  to 
found  the  motion,  but  it  is  not  conclusive.'^  There  should, 
in  addition,  be  an  affidavit  of  facts  sufficient  to  enable  the 
court  to  form  an  opinion  on  the  subject.''  The  court  does 
not  usually  hear  any  extended  argument  of  motions  of  this 
kind  at  the  circuit,  and  often,  where  it  is  in  doubt,  reserves 
the  question  for  future  consideration. 

Allowance^  hoio  computed. 

The  rates  of  allowance  are  estimated  upon  the  value  of 
the  property  claimed  or  attached,  or  atfected  by  the  adju- 
dication upon  the  will  or  other  instrument,  sought  to 
be  adjudged,  or  the  amount  found  due  upon  the  mort- 
gage in  an  action  for  foreclosure.  And  whenever  it  is 
necessary  to  apply  to  the  court  for  an  order  enforcing  the 
payment  of  an  installment  falling  due  after  judgment  in 
an  action  for  foreclosure,  the  plaintiff  is  entitled  to  the 
rate  of  allowance  as  above  specified,  but  to  no  more  in 
the  aggregate  than  if  the  whole  amount  of  the  mortgage 
had  been  due  when  the  judgment  was  entered.  Such 
amount  of  value  must  be  determined  by  the  court  or  by 
the  commissioners  in  cases  of  partition.^ 


'  2  N.  Y.,  570.  °  7  How.  Pr.,  490. 

»  3  Sandf.,  755.  '  4  How.  Pr.,  185;  16  Id.,  271. 

'  6  How.  Pr.,  235.  '  5  How.  Pr.,  153;  4  Id.,  252. 

*  8  How.  Pr.,  31 ;  5  Id.,  242 ;  Rule  52.  '  Code,  §  309. 

*  5  How.  Pr.,  121. 


430  ADMmiSTRATIOK  OF  CIVIL  JUSTICE. 

No  allowance  can  be  made  in  an  action  to  try  the  title 
to  an  office,^  nor  in  an  action  brought  under  the  act  to 
authorize  the  sale  of  real  estate  in  certain  cases  to  pay- 
assessments ;  nor  under  the  act  to  provide  for  the  due 
apportionment  of  taxes  and  assessments.^  In  cases  of 
this  class  there  is  nothing  involved  on  which  to  compute  a 
per  centage. 

Where  there  is  a  recovery,  the  per  centage  allowed 
because  of  the  case  being  difficult  and  extraordinary,  is 
computed  upon  the  amount  recovered,  it  is  only  when  the 
defendant  recovers  judgment  that  the  allowance  is  com- 
puted upon  the  amount  claimed.^ 

Where  an  attachment  is  issued  and  levied  upon  pro- 
perty exceeding  the  amount  which  the  plaintiff  is  entitled 
to,  the  allowance  is  computed  only  on  the  amount  of  the 
recovery.*  Where  the  action  is  to  recover  possession  of 
property,  and  the  value  claimed  was  one  thousand  dollars, 
the  value  proved  was  two  hundred  and  eighty-one,  the 
court  held,  the  plaintiff  having  been  nonsuited  in  the 
case,  that  the  defendant's  allowance  should  be  upon  value 
proved,^  and  in  such  a  case  it  was  held  that,  where  the 
defendant  succeeded,  the  jury  must  assess  the  value  of 
the  property  claimed,  or  the  defendant  cannot  have  an 
additional  allowance  for  costs  ;^  but  the  contrary  has  since 
been  held.^  The  latter  decision  is  thought  to  be  most 
satisfactory. 

Effect  of  neio  trial  on  allowance. 

Where,  after  an  allowance  is  made,  the  judgment  is 
reversed  or  a  new  trial  is  granted,  the  allowance  is  thereby 
defeated.* 

Increased  costs  under  Revised  Statutes. 

It  was  only  those  provisions  of  the  Eevised  Statutes 
which  established  or  regulated  the  costs  or  fees  of  attor- 
neys, solicitors  and  counsel,  that  were  expressly  repealed 
by  the  Code ;  the  statute  giving  double  costs*^  to  public 
officers,  and  in  certain  other  cases,  therefore,  remains  in 


»  25  Barb.,  652.  '  9  How.  Pr.,  339. 

"  24  Barb.,  142.  •  2  Code  R,  80. 

"  4  Abb.  Pr.,  98.  M  C.  R  N.  S.,  372. 

♦  5  Abb.,  221.  »  7  How.  Pr.,  370 ;  4  Abb.  Pr.,  245. 


COSTS.  431 

force.^  These  increased  costs  are  given  for  the  protection 
of  officers,^  and  where  an  officer  is  sued,  and  a  party  to 
the  suit,  under  whose  process  the  party  acted,  assumes 
the  defense,  and  indemnifies  the  officer,  such  party  is  enti- 
tled to  double  costs.^ 

By  the  Eevised  Statutes,^  it  is  provided  that  in  the  fol- 
lowing actions,  if  judgment  be  rendered  for  the  defendant 
upon  verdict,  demurrer,  nonsuit,  non  pros,  discontinuance 
of  the  plaintif}',  or  otherwise  in  any  action,  certiorari,  writ 
of  error,  or  other  proceeding,  such  defendant  shall  recover 
the  amount  of  his  taxed  costs  and  one-half  thereof  in 
addition : 

1.  In  actions  against  public  ofiicers  appointed  under  the 
authority  of  this  state,  or  elected  by  the  people  ;  or  against 
any  person  specially  appointed  according  to  law  to  exe- 
cute the  duties  of  such  public  officer,  for  or  concerning 
any  act  done  by  such  officer  or  person  by  virtue  of  his 
office,  or  for  or  concerning  the  omission  by  such  officer  or 
person  to  do  any  act  which  it  was  bis  official  duty  to 
perform. 

2.  In  actions  against  any  other  person  for  doing  any 
act  by  the  commandment  of  such  officers  or  persons,  or 
in  their  aid  or  assistance  touching  the  duties  of  such  office 
or  appointment. 

3.  In  actions  against  any  person  for  taking  any  distress, 
making  any  sale,  or  doing  any  other  act  by  authortiy  of 
any  statute  of  this  state. 

It  is  also  provided  by  the  Eevised  Statutes,^  that  if  it 
shall  appear  that  a  suit  against  a  foreign  corporation  was 
brought  vexatiously  and  without  just  cause,  they  shall 
award  double  costs  against  the  plaintiff. 

It  is  further  provided  by  statute,^  that  whenever  an 
officer  of  the  militia,  or  any  person  acting  under  his  com- 
mand, shall  be  prosecuted  for  any  act  done  by  him  as  such, 
and  the  plaintiff  shall  be  non-prossed  or  nonsuited,  or  have 
a  verdict  or  judgment  against  him,  the  defendant  shall 
recover  treble  costs. 

It  is  said  that  double  costs  are  computed  by  adding 
one-half  thereof  thereto,  and  treble  costs  by  adding 
seventy-five  per  cent  thereto  f  but  where  a  militia  officer 
was  successful  in  a  suit  brought  against  him  for  official 

'  ]8  N.  Y.,  260.  *  2  R.  S.,  461,  §  26. 

»  6  Wend.,  29T  ;  2  R.  S.,  617,  §  25.  '1  R.  S.,  324,  §  6. 

»  2  R.  S.,  640,  §  24.  "9  Wend.,  443. 


432  ADMINlSTRATIOlir  OF  CIVIL  JUSTICE. 

acts,  the  costs  were  actually  trebled,  that  is  he  recovered 
three  times  the  taxed  bill.^ 

WTiere  a  party  claims  that  he  is  entitled  to  increased 
costs,  he  should  move  at  special  term  for  the  allowance  of 
the  same,  and  should  prove  in  his  motion  papers  the  facts 
on  which  his  motion  rests.''  The  motion  may  also  be 
founded  on  the  case  and  exceptions  on  which  the  motion 
for  a  new  trial  was  heard.^ 

♦  An  officer  is  entitled  to  double  costs  on  appeal  as  well 
as  in  the  court  of  original  jurisdiction,*  but  it  is  otherwise 
where  he  is  appellant.^ 

A  trustee  of  a  school  district  is  an  officer  within  the 
statute;*  so  is  a  constable,  sued  in  justice's  court  for  an 
official  act  ;^  so  is  a  surrogate,  sued  for  an  alleged  violation 
of  duty  in  not  paying  over  money  f  so  are  persons  work- 
ing out  their  highway  tax  under  the  direction  of  a  highway 
officer;^  but  where  an  action  in  the  nature  of  a  quo  war- 
ranto is  brought  against  an  officer  to  try  his  title  to  an 
office,  it  is  not  proceeding  for  an  act  done  by  virtue  of  his 
office  so  as  to  entitle  him  to  double  costs  ;'°  nor  is  an  officer 
entitled  to  double  costs  where  he  has  joined  in  a  plea 
of  justification  with  one  who  is  not  entitled  to  double 
costs." 

The  statute  giving  double  costs  to  others  than  officers 
when  sued  for  an  act  done  by  command  of  an  officer,  ap- 
plies only  to  third  persons  who  are  strangers  to  the  process 
and  are  called  upon  by  the  officer  to  assist  him,  but  does 
not  apply  to  a  party  to  such  action  who  aided  the  officer 
solely  in  his  own  behalf." 

The  statutes  awarding  double  costs  are  penal  and  are 
not  to  be  extended  in  their  construction.  So,  it  is  said, 
double  costs  are  not  given  where  judgment  is  given  on 
demurrer  ;^^  nor  where  the  judgment  is  upon  the  report  of 
referees;"  but  the  correctness  of  these  authorities  are 
doubted.  These  statutes  do  not  extent  to  special  motions 
in  the  progress  of  the  cause.'*  So,  where  in  an  action 
against  a  public  officer,  if  a  favor  is  granted  by  the  court 


'  7  How.,  55.  »  1  Den.,  626. 

'  4  Wend.,  216;  2  How.  Pr.,  127.  »  21  How.  Pr.,  314. 

'  21  Idem,  314.  "  9  Wend.,  464. 

*  1  N.  Y.,  239.  "  18  How.  Pr..  481. 

'  4  Hill,  546;   6  How.  Pr.,  253;  9  Id.,    "  5  Johns.,  182;  9  Id.,  254;  20  Id.,  212. 

80;   18  Id.,  468.  »  5  How.,  393. 

.  9  Wend.,  35.  »  4  Wend.,  201 ;  1  Hill,  673. 
'  13  Wend.,  280. 


COSTS.  433 

to  the  other  party  on  payment  of  costs,  single  costs  are 
deemed  to  have  been  intended.' 

Costs  on  appeal  to  the  general  term. 

On  appeal  to  the  general  term  (except  an  appeal  from 
an  order  of  a  single  judge  at  chambers  or  special  term), 
the  prevailing  party  recovers,  in  adtlition  to  disbursements, 
for  proceedings  before  argument,  twenty  dollars ;  for  ar- 
gument, forty  dollars,  and  for  every  general  term,  not 
exceeding  five,  at  which  the  cause  is  necessarily  on  the 
calendar,  and  is  not  argued,  or  is  postponed  by  order  of 
the  court,  ten  dollars.^ 

Where  a  new  trial  is  ordered,  or  where  a  judgment  is 
afiirmed  in  part,  or  reversed  in  part,  these  costs  are  in  the 
discretion  of  the  court  f  and  where  a  respondent,  who 
might  have  had  an  appeal  dismissed  on  motion,  will  not 
be  allowed  costs  on  its  dismissal  at  the  hearing.* 

Special  verdict,  case  and  exceptions. 

The  same  costs  as  upon  an  appeal  to  the  general  term 
are  allowed  to  the  prevailing  party  before  argument,  and 
for  argument  on  application  for  judgment  upon  special 
verdict ;  or  upon  a  verdict  subject  to  the  opinion  of  the 
court,  or  for  a  new  trial  on  a  case  made,  and  in  cases 
where  exceptions  are  ordered  to  be  heard  in  the  first  in- 
stance at  general  term.^ 

The  same  costs,  in  the  discretion  of  the  court,  are  allowed 
on  appeals  from  an  order  made  by  a  single  judge  to  the 
general  term  as  are  allowed  on  other  non-enumerated 
motions. 

Costs  in  court  of  appeals. 

The  prevailing  party  recovers  costs  in  the  court  of 
appeals  as  follows :  For  proceedings  before  argument, 
thirty  dollars ;  for  argument,  sixty  dollars,  and  to  the 
appellant,  when  he  succeeds,  for  preparing  and  serving 
the  case  on  appeal,  twenty  dollars.^ 

When  a  judgment  is  affirmed,  the  court  may,  in  its  dis- 
cretion, also  award  damages  for  the  delay,  not  exceeding 
ten  per  cent  on  the  amount  of  the  judgment.   The  question 

'  7  How.  Pr.,  190.  M5  Barb.,  654. 

»  Code.  §  307.  '  Code,  §  307. 

» Idem,  §  306.  •  Code,  §  307. 

n.— 55 


434  ADMINISTRATION  OF   CIVIL  JUSTICE. 

as  to  this  allowance  is  usually  acted  upon  by  the  court  at 
the  time  of  deciding  the  case.^ 

The  remittitur  should  give  directions  as  to  costs ;  and 
■where  it  is  incorrect,  a  motion  to  have  it  corrected  should 
be  made  to  the  court  of  Appeals,  before  it  is  filed  in  the 
supreme  court.^ 

The  costs  are  in  the  discretion  of  the  court  where  a  new 
trial  is  ordered,  or  where  the  judgment  appealed  from  is 
affirmed  in  part  and  reversed  in  part.^ 

Costs  of  the  court  of  appeals  are  taxed  in  the  supreme 
court,  where  motion  must  be  made  for  redress  if  the  party 
charges  too  much  costs.* 

AVhere  an  appeal  is  dismissed  with  costs,  for  want  of 
prosecution,  the  respondent  is  entitled  to  thirty  dollars  f 
but  where,  after  argument  on  the  merits,  the  appeal  is  dis- 
missed with  costs,  the  respondent  is  entitled  to  general 
costs.^ 

The  prevailing  party  is  entitled  to  tax  ten  dollars  for 
each  term  the  cause  was  necessarily  on  the  calendar,  and 
was  not  argued,  or  was  postponed  by  order  of  the  court ;' 
and  the  allowance  of  term  fees  is  not  limited  to  five,  as  in 
the  other  courts.^ 

Trmisferred  appeal. 

Where  an  appeal  is  transferred  to  the  supreme  court 
from  the  county  court,  upon  the  certificate  of  the  county 
judge  of  his  incapacity  to  hear  the  case,  costs  of  the 
county  court  only  are  taxable.^ 

Taxation  of  costs. 

When  the  judgment  is  for  the  recovery  of  money,  inte- 
rest on  the  verdict  or  report  from  its  rendition  until  judg- 
ment be  finally  entered  by  the  clerk  should,  be  added  to 
the  costs  of  the  party  entitled  thereto.^" 

Disbursements. — There  is  also  to  be  taxed  by  the  clerk, 
and  included  in  the  judgment,  the  necessary  disburse- 
ments, including  the  fees  of  officers  allowed  by  law,  the 
reasonable  compensation  of  commissioners  in  taking  depo- 
sitions, the  fees  of  referees,  and  the  expense  of  printing  the 


•  18  N.  Y.,  448.  •  10  How.  Pr.,  117. 

Corast.,  239.  ■»  Code,  §  307. 

'  Code,  §  30G.  »  26  How  Pr.,  163  ;  25  Id.,  368. 

;  2  N.  Y.,  559.  »  16  How.  Pr.,  327. 

2  Sandf.,  739 ;  5  Abb.  Pr.,  26^.  »  Code,  §  310 


COSTS.  435 

papers  for  every  hearing,  when  required  by  the  rale  of  the 
court.' 

The  right  to  disbursements  is  incident  to  the  right  to 
costs,  and  they  cannot  be  recovered  where  costs  cannot  be  ;^ 
and  the  disbursements  allowed  to  be  taxed  under  the  Code 
are  substantially  those  allowed  by  the  Eevised  Statutes,' 
and  are  intended  to  embrace  such  as  are  incident  to  the 
due  and  regular  proceeding  in  the  cause,  but  not  the  ordi- 
nary disbursements  of  the  parties.* 

Referees  fees. — The  fees  of  the  referees  are  three  dollars 
to  each,  for  every  day  spent  in  the  business  of  the  refer- 
ence; but  the  parties  may  agree,  in  writing,  upon  any 
other  rate  of  compensation.^ 

Where  objection  is  made  to  the  charge  of  a  referee,  the 
proper  proof  of  the  time  actually  spent  by  him  is  his  affi- 
davit thereto  f  and  where  the  fees  paid  to  the  referee  were 
sworn  to  in  the  general  affidavit  of  disbursements,  it  is 
enough  to  oppose  a  motion  for  re-adjustment,  on  the  ground 
that  they  were  not  shown  to  have  been  incurred,  to  produce 
upon  the  motion  the  referee's  receipt  in  addition."^  When, 
upon  taxation  of  costs,  the  sum  claimed  by  the  prevailing 
party  as  his  disbursements  for  referee's  fees  is  objected  to, 
and  no  writing  is  produced  agreeing  to  any  particular  com- 
pensation, the  allowance  cannot  exceed  three  dollars  for 
each  day  spent  by  the  referee,  in  person,  in  the  business 
of  the  reference.^ 

Clerks'  fees. — The  clerk  is  entitled  to  charge,  for  every 
trial  from  the  party  bringing  it  on,  one  dollar;  for  enter- 
ing a  judgment,  by  filing  a  transcript,  six  cents ;  for 
entering  a  judgment,  fifty  cents,  except  in  courts  where 
the  clerks  are  salaried  officers,  and  in  such  courts  one 
dollar. 

He  is  not  allowed  to  receive  pay  for  any  other  services 
whatever  in  a  civil  action,  except  for  copies  of  papers  at 
the  rate  of  five  cents  for  every  hundred  words.^ 

The  foregoing  are  provided  for  by  the  Code,  and  the 
Code  in  this  respect  is  deemed  to  have  repealed  the  former 
fee  bill,  so  far  as  it  relates  to  clerks  of  courts.'"  The  trial 
fee  of  one  dollar  was  intended  to  pay  the  clerk  for  the 


>  Code,  §  311.  •  17  Hov,'.  Pr.,  471. 

»  1  Bosw ,  653 ;  4  How.  Pr.,  269.  '  15  How.  Pr.,  315, 

'  2  R.  S.  634,  §  20.  '  17  How.  Pr.,  471. 

*  17  How.  Pr.,  348 ;  3  Id.,  280.  '  Code,  §  312. 

•  Code,  313.  "  15  How.  Pr.,  226. 


436  ADMINISTKATION   OF   CIVIL  JUSTICE. 

ordiuary  miscellaneous  services  required  of  him  in  the  pro- 
gress of  the  cause,  as  well  as  the  services  rendered  in  the 
court  on  the  trial,  and  embraces  the  services  of  putting 
the  cause  on  the  calendar,^  for  entering  the  rough  minutes, 
and  for  entering  in  the  books  any  rule  or  order.=^ 

The  clerk's  trial  fee  is  allowable  as  well  on  trials  of 
issues  of  law  as  issues  of  fact ;  it  is  also  allowable  for 
each  argument  at  general  term  on  appeal  f  but  he  is  not 
entitled  to  a  trial  fee  when  the  complaint  is  dismissed  for 
neglect  to  bring  suit  to  trial,*  nor  when  the  trial  is  by 
referee.^ 

The  clerk  is  not  entitled  to  this  trial  fee  until  the  cause 
is  called  on  to  be  heard.'' 

The  fee  of  fifty  cents  for  entering  judgment,  means 
entering  the  judgment  in  the  judgment  book,  and  it  is 
not  chargeable  until  it  is  so  entered^ 

Sheriff's  fees  and  fees  of  others  for  serving  papers.  The 
fees  of  the  sheriff  may  be  taxed  for  any  service  necessarily 
performed  by  him  as  sheriff,  or  that  as  sheriff  he  is  author- 
ized to  perform. 

The  sheriff  is  entitled  to  fifty  cents  for  every  cause 
returned  for  trial  at  the  circuit,  or  on  the  calendar  thereof 
for  trial,^  and  for  serving  a  summons,  fifty  cents  for  each 
defendant  served.  He  is  also  entitled  to  six  cents  per  mile 
for  going,  only  to  be  computed  from  the  court  house,  but 
the  travel  fee  can  be  charged  on  only  one  process,  no  mat- 
ter what  number  of  defendants  there  are.^  The  sheriff  is 
also  entitled  to  charge,  and  this  may  be  taxed  in  the 
disbursements,  fifty  cents  for  receiving  and  returning 
execution,  six  cents  for  filing  execution,  and  twelve  cents 
for  returning  the  same. 

Expenses  of  serving  a  subpoena  are  not  taxable,^**  but  it 
is  proper  to  allow  a  disbursement  shown  to  be  fair  and 
necessary  for  the  service  of  a  summons  and  complaint, 
and  notice  of  object  of  action  by  a  person  other  than  the 
sheriff,  but  such  disbursement  should  not  exceed  the  amount 
of  the  sheriff's  fee  for  similar  services.'^ 

So  for  the  service  of  notice  of  no  personal  claim,  in 


'  15  How.  Pr.,  225.  '  5  How.  Pr.,  11. 

»  2  How.  Pr.,  11.  •  17  How.  Pr.,  348. 

'  5  How.  Pr.,  11.  »  14  How.  Pr..  568. 

*  8  How.  Pr.,  33.  «»  15  How.  Pr.,  430. 
»  1  Code  R.,  34.  "  17  How.  Pr.,  348. 

•  1  Code  R.,  41. 


COSTS.  437 

addition  to  the  summons  in  foreclosure,  &c.,  it  is  said  the 
plaintiff  may  be  allowed  one-half  the  amount  for  serving 
the  summons,  whether  made  by  the  sheriff  or  any  other 
person.^ 

Juror's  fees.  Fees  paid  jurors  cannot  be  taxed  unless  a 
jury  was  necessary.  So  juror's  fees  cannot  be  taxed  where 
an  inquest  is  taken  in  an  action  on  a  money  demand.^ 

Searches  and  copies  impers.  Proper  sums  jpaid  for  neces- 
sary searches  and  copies  of  papers  from  the  clerk's  office, 
and  exemplifications,  are  taxable.^ 

Witness  fees.  A  witness  is  entitled  to  fifty  cents  for 
each  day  while  attending  any  court  or  officer,  and  if  he 
resides  more  than  three  miles  from  the  place  of  attend- 
ance, traveling  fees  at  the  rate  of  four  cents  a  mile  for 
going  and  returning.* 

If  a  witness  is  sojourning  away  from  his  place  of  resi- 
dence, and  is  subijoenaed  at  such  place,  he  is  entitled  to 
travel  fees  from  that  place,  though  that  is  more  distant 
from  the  court  than  his  residence.^  On  the  contrary,  if  he 
is  sojourning  at  a  place  not  so  far  distant  from  the  court 
as  his  place  of  residence,  and  it  is  not  necessary  for  him 
to  return  home  before  attending  the  court,  he  is  only 
entitled  to  traveling  fees  from  the  place  where  he  is  so 
subpoenaed,  but  not  so  where  he  is  only  temporarily  at 
such  place.®  Where  a  witness  is  tendered  his  fees,  they 
are  taxable,  for  though  not  received  by  him,  he  is  entitled 
to  receive  them.'^  AVhere  a  witness  came  from  without 
the  state  to  attend  a  circuit,  which  he  got  notice  was 
adjourned  before  he  reached  the  place  of  holding  court,  it 
was  held  that  his  fees  could  be  taxed.**  Where  the  time 
for  trial  is  adjourned  from  time  to  time,  for  so  long  an 
interval,  that  it  is  reasonable  for  the  witnesses  to  go  home, 
and  they  do  go  home,  travel  for  each  attendance  may  be 
taxed." 

The  fees  of  a  witness  who,  for  good  cause,  was  not  sub- 
poenaed till  late,  and  who  arrived  at  court  after  the  cause 
was  postponed,  but  in  time  to  have  been  sworn  if  the 
cause  had  been  tried,  are  taxable  f  but  when  the  witness 
leaves,  by  the  consent  of  the  party,  before  the  trial,  the 


'  14  How.  Pr.,  568.  '  16  How.  Pr.,  53. 

Ml  How.  Pr.,  377.  '  6  How.  Pr.,  204. 

'  17  How.  Pr.,  348;  2  Paige,  458.  '  16  How.  Pr.,  306;   1  Id.,  213. 

*  2  R.  S.,  643.  •  4  How.  Pr.,  243 ;  3  Hill,  457. 

•  4  How.  Pr.,  243  ;  6  Id.,  265,  311. 


438  ADMINISTPwATION  OP  CIVIL  JUSTICE. 

•witness'  attendance  should  not  be  deemed  material 
unless  it  appears  that  his  attendance  was  rendered  unne- 
cessary by  some  admission  of  the  other  side.'  Where  a 
witness  is  subpoenaed  in  several  causes  his  fees  are  taxable 
in  each.^ 

Neither  the  attorney  or  counsel  of  a  party  is  entitled  to 
fees  as  a  witness,^  but  when  counsel  was  subpoenaed  and 
attended  the  court  as  a  witness,  and  was  afterwards 
retained  as  counsel,  it  was  held  that  his  fees  were  tax- 
able." 

Affidavits  of  attendance  of  witnesses  and  of  disbursements. 
Where  there  are  any  charges  in  a  bill  for  copies  or  exem- 
plifications of  documents  or  papers,  or  for  any  other 
disbursements,  except  to  officers  for  services  rendered, 
such  charges  cannot  be  taxed  without  an  affidavit  that 
such  copies  were  actually  and  necessarily  used,  or  were 
necessarily  obtained  for  use ;  nor  are  any  disbursements 
allowable  without  an  affidavit  specifying  the  items  thereof 
particularly,  nor  unless  they  appear  to  have  been  neces- 
sary and  reasonable  in  amount.'* 

The  affidavit  to  show  that  the  party  is  entitled  to  tax 
witness  fees  in  his  costs,  should  show  the  name  and  place 
of  residence  of  each  of  his  witnesses,  the  distance  they 
severally  resided  fi?om  the  place  of  trial  according  to  the 
usually  traveled  route,  the  number  of  miles  they  respec- 
tively traveled  as  such  witnesses  for  the  purpose  of  going 
to  the  place  of  trial,  and  returning  therefrom,  and  that 
they  were  material  or  necessary,  or  that  the  party  believed 
them  to  be  so  ;  and  if  any  witness  is  subpoenaed  at  a  tem- 
porary place  of  residence,  the  fact  should  be  stated,^  if 
the  opposite  party  objects,  and  raises  a  reasonable  suspi- 
cion that  some  of  the  witnesses  were  called  for  the  pur- 
pose of  swelling  the  bill,  or  if  it  appears  that  some  were 
not  called  at  all  upon  the  trial,  the  party  claiming  to  have 
their  fees  taxed,  should  show  by  his  affidavit  the  mate- 
riality of  the  witness,  and  why  they  were  not  called ;  in 
such  a  case,  the  ordinary  affidavit  is  not  sufficient."  But 
where  a  party  had  subpoenaed  seventeen  witnesses  upon 
an  issue  which  had  been  previously  found  against  him  on 


'  6  How.  Pr.,  410.  •  12  How.  Pr.,  446. 

1  How.  Pr.,  136.  T  15    jj^^    pj.^    3^5      j^__    2I6:     19 

'  1  Wend.,  24 ;  2  R.  S.,  651.  Wend..  82 :  3  HilL  457  :  5  Id.,  595 : 

'Hill.  141-  6  Id.,  376.        ^^         '          '        . 

»  2  R.  S.,  653.  ' 


COSTS.  439 

a  former  trial  of  another  action,  presenting  the  same  issue 
when  he  had  examined  twelve,  but  the  court  on  the  pre- 
sent trial  allowed  him  to  swear  but  five,  it  was  held  that 
he  should  be  allowed  to  tax  witness  fees  for  the  whole 
number.* 

Foreign  witnesses.  Where  a  witness  attends  from  another 
state,  the  charge  for  fees  should  be  for  the  number  of  miles 
from  the  state  Une  by  the  most  usually  traveled  route 
from  the  witness'  residence,  and  the  affidavit  of  the  wit- 
ness' attendance  should  state  where  such  route  crosses 
the  state  line.^ 

Party  as  a  witness.  To  authorize  a  charge  for  the  attend- 
ance of  the  party  as  a  witness,  it  should  appear  by  his  own 
affidavit  that  he  attended  solely  as  a  witness  ;  unless  this 
is  shown,  it  is  held  that  he  is  not  entitled  to  fees  as  a  wit- 
ness.* The  general  term  of  the  third  district  have  held,  that 
upon  the  same  facts  being  proved,  that  entitles  a  party  to 
tax  the  fees  of  any  other  witness,  he  may  tax  his  own  fees 
as  such,  and  this  seems  to  be  the  more  satisfactory  decision. 

Expenses  in  executing  a  commission. 

Under  the  Code  the  necessary  disbursements  of  the 
prevailing  party  for  witness'  fees,  commissioner's  fees,  and 
the  like,  in  executing  a  commission  in  a  foreign  state,  are 
taxable.^ 

Surveyors^  fees  are  not  taxable,  except  when  the  survey 
is  a  part  of  the  proceedings  in  the  action.^ 

Notice  of  taxation.  The  bill  of  costs  should  be  made  up 
of  the  items ;  the  disbursements  should  be  stated  in  detail 
and  verified  by  affidavit.  When  the  attorneys  reside  in 
the  same  city,  village  or  town,  at  least  two  days'  notice 
should  be  given  of  the  time  when  the  costs  will  be  taxed 
before  the  clerk ;  this  notice  must  be  for  at  least  two  full 
business  days,  and  a  copy  of  the  items  of  the  costs  and 
disbursements  must  be  served  with  the  notice  of  adjust- 
ment. In  other  cases  than  those  above  specified,  there 
must  be  at  least  five  days'  notice. 

This  notice  of  adjustment  is  necessary  in  all  cases  where 
there  has  been  an  appearance,  though  no  answer  has  been 
interposed.^ 


'  5  Abb.  Pr.,  227.  ••  13  How.  Pr.,  13. 

«  10  Abb.  Pr.,  304.  '  15  How.  Pr.,  216. 

'  20  How.  Pr.,  353  :  15  Abb.  Pr.,  135.  "  Code,  §  246 ;  2  Code  R.,  30. 


440  ADMINISTRATION   OF   CIVIL  JUSTICE. 

It  is  not  necessary  to  prove  the  service  of  the  notice  of 
taxation,  unless  the  other  party  shows  by  affidavit  that  no 
notice  of  adjustment  was  received  in  which  case  to  make 
the  taxation  regular,  it  is  necessary  to  prove  the  time  and 
manner  of  service.* 

The  notice  of  taxation  may  be  given  before  the  right  to 
costs  is  established,  provided  such  right  shall  be  esta- 
blished at  the  time  for  which  the  notice  is  given.  In  col- 
lection cases  where  notice  of  appearance  has  been  served, 
and  a  default  is  expected,  some  time  may  be  saved  by 
giving  notice  of  adjustment  before  the  default  has  actually 
occurred.^ 

Effect  of  omitting  notice.  The  omission  to  give  notice  of 
adjustment  does  not  affect  the  regularity  of  the  judgment, 
but  the  taxation  is  irregular,  and  will,  on  motion,  be  set 
aside  with  costs.^  It  has  been  said  that  the  old  practice 
of  entering  judgment  and  giving  notice  of  retaxation  is 
not  regular  under  the  Code,  but  it  is  quite  a  common 
practice  to  do  this,  and  it  is  thought  that,  although  it  is 
technically  irregular  to  tax  costs  Avithout  notice,  the  irre- 
gularity is  cured  if  the  party  promptly  gives  notice  of 
retaxation,  and  stipulates  to  deduct  from  the  judgment 
and  execution  any  sum  that  may  be  deducted  from  the 
costs  on  such  retaxation. 

Poiver  and  duty  of  the  clerli.  There  is  no  authority  con- 
ferred upon  the  clerk  by  statute  to  adjust  costs  except  on 
the  entry  of  a  judgment.''  The  clerk  should  examine  the 
charges  whether  the  taxation  is  opposed  or  not,  and  strike 
out  all  items  which  in  his  opinion  are  not  legally  allow- 
able.* If  the  costs  are  not  adjusted  on  the  day  for  which 
notice  is  given,  and  the  opposite  party  does  not  attend, 
the  costs  may  be  adjusted  on  a  subsequent  day  without 
further  notice.'' 

Opposing  taxation.  If  the  bill  proposed  to  be  taxed  is 
objectionable,  the  objection  to  the  items  should  be  taken 
before  the  taxing  officer,  and  the  ground  of  the  objection 
should  be  assigned.  If  the  facts  on  which  the  taxation  or 
objection  rests  are  not  apparent,  the  clerk  should  allow  the 
parties  time  to  prepare  affidavits  showing  the  facts  of  the 
case.    If  the  party  fail  to  properly  object  on  the  taxation, 


'  10  How.  Pr.,  B66.  »  16  Barb.,    662;  4  How.  Pr.,  199;  9 
»  4  Sandf.,  693.  Id.,  86. 

'  16  Barb.,  658;  5  How.,  233.  »  1  Johns.  Cas.,  32 ;  2  Wend.,  252. 
*  6  How.  Pr.,  268,  415 ;  3  Code  R,  70. 


COSTS.  441 

he  will  not  be  allowed  to  take  any  objection,  on  motion  for 
retaxatiou,  that  the  court  can  see  could  have  been  obviated 
if  taken  before  the  clerk.  Where  the  opposing  party  can 
properly  excuse  his  omission  to  oppose  the  taxation  before 
the  clerk,  and  can  show  that  improper  items  have  been 
taxed,  the  court  will  generally,  on  proper  terms,  order  a 
readjustment. 

Taxation,  tvhat  statute  governs. — The  recovery  of  costs 
is  controlled,  as  to  items  and  the  rate  of  compensation,  by 
the  statutes  in  force  at  the  time  the  right  to  costs  accrues.^ 
Where  judgment  is  entered  by  default,  costs  are  taxable 
under  the  statutes  in  force  at  the  time  of  the  taxation,  that 
being  the  time  when  the  right  accrues.^  Where  the  decision 
of  an  issue  of  law  is  made  with  costs,  the  costs  are  to  be  taxed 
by  the  law  in  force  when  the  decision  is  made.^  Where 
the  complaint  is  dismissed  at  the  circuit  for  the  failure  of 
the  plaintiff  to  bring  the  cause  to  trial,  the  costs  are  to  be 
taxed  under  the  statute  in  force,  when  the  order  for  dis- 
missal was  granted.^  Where  the  trial  is  by  referee,  the 
costs  are  to  be  adjusted,  as  of  the  time  of  the  delivery  of 
the  report  f  and  where  the  trial  is  by  the  court,  at  the  {ime 
of  filing  the  decision.^  Where  the  trial  is  by  jury,  costs 
are  to  be  taxed  under  the  statute  in  force  at  the  time  the 
verdict  is  rendered.^  Where  a  cause  is  settled,  and  either 
party  is  to  have  taxable  costs,  such  costs  are  to  be  allowed 
as  were  taxable  at  the  time  the  settlement  was  made.'' 
The  right  to  an  additional  allowance  is  fixed  at  the  time 
which  determines  the  right  to  costs,  although  the  amount 
of  such  allowance  may  not  be  determined  till  afterwards.^ 
Eetaxation. — The  acts  of  a  clerk  in  adjusting  and  sett- 
ling the  amount  of  costs  is  subject  to  review.  The  remedy 
is  by  a  motion  to  the  special  term,  and  not  by  appeal.* 
The  motion  should  be  promj^tly  made,  at  least  before  the 
costs  are  paid,^"  and,  if  necessary  for  this  purpose,  a  stay 
of  proceedings  upon  the  judgment  may  be  obtained.  The 
motion  papers  should  contain  copies  of  the  papers  used 
before  the  clerk,  and  should  show  the  objections  taken  and 
the  decisions  made  by  the  clerk.     If  the  taxation  was 

*4HU1,591,  613;  SDenio,  173;1  How.  °  14  How.,  279;  15  Id.,  430. 

Pr.,  86;  1  Id.,  232;  4  Id.,  67.  '  3  Denio,  173. 

»  5  Abb.  Pr.,  14.  »  1  Hilt.,  557. 

*  15  How.  Pr.,  74.  '  15  Barb.,  132. 

*  14  How.  Pr.,  357  ;  4  Id.,  173 ;  1  Duer,  "  1  Code  Rep.  N.  S.,  41,  400 ;  5  How. 

61 8 ;  4  Wc-ud.,  210.  Pr.,  458 ;  2  Abb.  Pr.,  460. 

*  14  How.  Pr.,  300. 

II.— 56 


i 


442  ADMINISTEATION  OF   CIVIL  JUSTICE. 

opposed  before  the  clerk,  the  motion  will  be  heard  and 
determined  on  the  same  papers  that  were  before  the  clerk. 
If  the  taxation  was  not  opposed,  and  the  failure  to  attend 
before  the  clerk  is  properly  excused,  the  court  will  ordi- 
narily, on  terms,  order  a  retaxation. 

On  this  motion  if  a  retaxation  is  refused,  the  motion  is 
denied  with  costs.^  Where  the  retaxation  is  allowed,  and 
the  moving  party  is  successful  as  to  all  the  items  objected 
to,  he  is  entitled  to  costs  of  the  motion.^  Where  the  mov- 
ing party  succeeds  only  as  to  part  of  the  items  objected  to, 
neither  party  allowed  costs.^ 

Interlocutory  costs. 

When  an  action  has  been  terminated  by  judgment  in 
favor  of  one  or  the  other  party,  the  final  costs  are  inserted 
in  the  judgment  and  collected  with  it.  There  are  various 
cases,  however,  in  which  the  party  becomes  entitled  to 
costs  of  particular  proceedings  which  occur  during  the 
progress  of  the  cause,  without  any  reference  to  its  final 
result.  The  costs  in  these  proceedings  are  termed  inter- 
locutory costs.  Of  this  description  are  costs  of  special 
motions,  of  inquests,  of  preparing  for  trial,  of  putting  off 
trials,  and  other  siuiilar  proceedings. 

How  taxed.  Interlocutory  costs  and  costs  in  special  pro- 
ceedings may  be  taxed  by  the  judge  before  whom  the 
proceeding  is  heard,  or  the  court  before  which  the  same 
may  be  decided  or  pending,  or  in  such  other  manner  as 
the  judge  or  court  may  direct.*  It  is  the  usual  practice  to 
enter  in  the  order  by  which  the  proceeding  is  decided,  a 
direction  that  the  costs  be  adjusted  by  the  clerk,  and  then 
to  proceed  and  tax  the  costs  before  the  clerk  in  the  same 
manner  as  upon  the  entry  of  judgment.  AYhere  prompt 
taxation  is  desired,  as  in  case  of  an  order  putting  off  a 
cause,  the  court  may  order  the  taxation  to  take  place  before 
the  court  or  the  clerk  instanter. 

How  collected.  Where  the  rule  granting  costs  has  been 
served,  and  the  costs  are  not  paid  within  the  time  allowed 
by  the  rule  after  they  have  been  taxed,  or  otherwise  liqui- 
dated, a  process  in  the  nature  of  an  execution  can  be 
issued  for  the  collection  of  the  costs.^ 


•  2  Barb.  Ch.,   552.  «  Code,  §  311 

»  2  Paige,  347.  '  Laws  of  1847,  p.  491,  §  2;  13  How. 

'  3  Paige,  85 ;  5  Id.,  87 ;  1  Barb.  Ch.,  30.  Pr.,  191 ;  11  Id.,  446 ;  6  Id.,  265. 


COSTS.  443 

Costs  on  postponement  of  trial.  Where  an  application 
shall  be  made  to  a  court  or  referees  to  postpone  a  trial, 
the  payment  to  the  adverse  party  of  a  sum  not  exceeding 
ten  dollars,  besides  the  fees  of  witnesses,  may  be  imposed 
as  the  condition  of  granting  the  postponement.^ 

The  costs  on  postponing  a  cause  cannot  exceed  ten  dol- 
lars, besides  the  fees  of  witnesses.^  These  costs  should  be 
paid  immediately  after  they  are  ascertained,  without  wait- 
ing for  a  demand  f  and  if  they  are  not  paid  the  other  party 
may  proceed  with  the  trial  ;*  or  the  court  may  order  that 
the  other  party  have  judgment  unless  the  party  asking 
the  postponement  pay  the  costs  within  a  specified  number 
*of  days.^ 

Motions. 

Costs  may  be  allowed  on  a  motion  in  the  discretion  of 
the  court  or  judge,  not  exceeding  ten  dollars,  and  may  be 
absolute,  or  directed  to  abide  the  event  of  the  action.'' 

Costs  should  not  be  allowed  on  motions,  unless  such 
motions  were  necessary  for  the  attainment  of  some  sub- 
stantial right  in  the  cause  ;  or  unless  they  are  awarded  by 
way  of  punishment.^  It  is  said  that  costs  should  be  im- 
posed on  all  parties  that  commit  irregularities.^  Where 
the  party  makes  two  motions,  where  relief  could  be  had 
by  one,  he  must  pay  costs.^  So  when  he  asks  for  more 
in  his  notice  of  motion  than  he  is  entitled  to.^" 

Where  the  moving  party  only  partially  succeeds  in  his 
motion,  he  is  not  entitled  to  costs  of  the  motion."  Where 
the  party  does  not  ask  for  costs  of  motion,  he  cannot  have 
costs  if  he  takes  his  order  by  default.  The  order,  on  motion, 
should  fix  the  amount  of  costs  and  no  costs  can  be  collected 
when  the  order  says  nothing  about  costs. 

Costs  of  motions  cannot  be  taxed  and  included  in  the 
judgment,'^  but  must  be  collected  by  execution  as  interlocu- 
tory costs. 

Costs  of  revieio  in  special  proceedings  and  in  surrogate's  court. 

When  the  decision  of  a  court  of  inferior  jurisdiction  in 
a  special  proceeding,  including  appeals  from  surrogate's 


'  Idem,  §  314.  '1  Barb.,  71 ;  3  Code  Rep.,  153. 

»  6  How.  Pr.,  418.  "  1  Idem,  99;  2  Id.,  28. 

'  19  Johns.  Pr.,  270.  »  6  How.  Pr.,  268 

*  5  Hill,  516;  2  Sand.,  375.  "  4  Idem,  28  ;  2  Code  Rep.,  33. 
'  5  Hill,  446.  "  8  How.  Pr.,  50. 

•  Code,  §  315.  "7  How.  Pr.,  485. 


444  ADMimSTKATION  OP  CIVIL  JUSTICE. 

courts,  shall  be  brought  before  the  supreme  court  for 
review,  such  proceedings  are  for  all  purposes  of  costs 
deemed  an  action  at  issue  on  a  question  of  law  from  the 
time  the  same  shall  be  brought  into  the  supreme  court  and 
costs  thereon  shall  be  awarded  and  collected  in  such  man- 
ner as  the  court  shall  direct,  according  to  the  nature  of 
the  case.^ 

A  summary  proceeding  to  compel  a  party  to  support  a 
relative,  brought  by  certiorari  from  the  court  of  sessions 
to  the  supreme  court  for  review,  has  been  held  to  be  within 
the  above  provision.^ 

Costs  on  settlement.  It  is  provided  by  statute  that  upon 
the  settlement,  before  judgment,  of  any  action  mentioned 
in  section  304,  no  greater  sum  shall  be  demanded  from  the 
defendant  as  costs  than  at  the  rates  prescribed  by  that 
section.^ 


*  Code,  §  318.  '  Code,  §  322. 

*  7  How.  Pr.,  154. 


ANNUITY    TABLES. 


Annexed  will  be  found  a  table  corresponding  with  the  North- 
ampton tables  referred  to  in  the  84th  rule  of  the  Supreme  Court, 
and  such  of  Hendry's  tables  as  are  occasionally  referred  to  in  our 
reports : 

A  TABLE 

Correspo7iding  with  the  Northampton  tables  referred  to  in  the  Mth 
nile^  showing  the  value  of  an  annuity  of  one  dollar^  at  six  per 
cent,  on  a  single  life,  at  any  age  from  one  year  to  ninety  four.^ 
inclusive. 


Age. 

No.  of  years 
purchase 

the  annuity 
is  worth. 

Age. 

No.  of  years 
purchase 

the  annuity 
18  worth. 

Age. 

No.  of  years 
purchas^e 

the  annuity 
is  worth. 

Age. 

No.  of  years 
purchase 

the  annuity 
is  worth. 

1 

10.107 

25 

12.063 

49 

9.563 

73 

4.781 

2 

11.724 

26 

11.992 

50 

9.417 

74 

4.565 

3 

12.348 

27 

11.917 

51 

9.273 

75 

4.354 

4 

12.769 

28 

11.841 

52 

9.129 

76 

4.154 

5 

12.962 

29 

11.763 

53 

8.980 

77 

3.952 

6 

13.156 

30 

11.682 

54 

8.827 

78 

3.742 

7 

13.275 

31 

11.598 

55 

8.670 

79 

3.514 

8 

13.337 

32 

11.512 

56 

8.509 

80 

3.281 

9 

13.335 

33 

11.423 

57 

8.343 

81 

3.156 

10 

13.285 

34 

11.331 

58 

8.173 

82 

2.926 

11 

13.212 

35 

11.236 

59 

7.999 

83 

2.713 

12 

13.130 

36 

11.137 

60 

7.820 

84 

2.551 

13 

13.044 

37 

11.035 

61 

7.637 

85 

2.402 

14 

12.953 

38 

10.929 

62 

7.449 

86 

2.266 

15 

12.857 

39 

10.819 

63 

7.253 

87 

2.138 

16 

12.755 

40 

10.705 

64 

7.052 

88 

2.031 

17 

12.655 

41 

10.589 

65 

6.841 

89 

1.882 

18 

12.562 

42 

10.473 

66 

6.625 

90 

1.689 

19 

12.477 

43 

10.356 

67 

6.405 

91 

1.422 

20 

12.398 

44 

10.235 

68 

6.179 

92 

1.136 

21 

12.329 

45 

10.110 

69 

5.949 

93 

806 

22 

12.265 

46 

9.980 

70 

5.716 

94 

518 

23 

12.200 

47 

9.846 

71 

5.479 

24 

12.132 

48 

9.707 

72 

5.241 

Note. — The  values  in  this  table  are  calculated  on  the  supposition  that  the  annuities  are 
payable  yearly ;  if  payable  half  yearly,  one-fifth  of  a  year'.s  purchase  should  be  added  to 
those  values. 

For  the  rule  to  compute  the  present  value  of  an  inchoate  or  contingent  right  of  dower, 
vide  Jackson  v.  Edwards,  7  Paige,  408;  McKean's  Pr.  Int.  Tables,  25,  §  4;  Hendry'e  Ana, 
Tables,  87,  prob.  4. 


446  ANNUITY   TABLES. 

Rules  for  Computing  the  Value   of  the  Life  Estate   oe 

Annuity. 

Calculate  the  interest  at  six  per  cent  for  one  year,  upon  the  sum 
to  the  income  of  Avhich  the  person  is  entitled.  Multiply  this  inte- 
rest by  the  number  of  years'  purchase  set  opposite  the  person's 
age  in  the  table,  and  the  product  is  the  gross  value  of  the  life 
estate  of  such  person  in  said  sum. 

Examples. 

Suppose  a  widow's  age  is  37;  and  she  is  entitled  to  dower  in 
real  estate,  worth  $350.75.  One-third  of  this  is  $116.91f.  Inte- 
rest on  1116.91,  one  year  at  six  per  cent  (as  fixed  by  84th  rule),  is 
$7.01.  The  number  of  years'  purchase  which  an  annuity  of  one 
dollar  is  worth,  at  the  age  of  37,  as  appears  by  the  table,  is  11 
years,  and  yff  ^  parts  of  a  year,  which,  multiplied  by  $7.01,  the 
income  for  one  year,  gives  $77.35,  and  a  fraction,  as  the  gross 
value  of  her  right  of  dower. 

Suppose  a  man,  whose  age  is  50,  is  tenant  by  the  courtesy  in  the 
whole  of  an  estate  worth  $9,000.  The  annual  interest  on  the  sum, 
at  six  per  cent,  is  $540.00.  The  number  of  years'  purchase  which 
an  annuity  of  one  dollar  is  worth,  at  the  age  of  50,  as  per  table,  is 
^ToVo  pai'ts  of  a  year,  which  multiplied  by  $540,  the  value  of  one 
year,  gives  $5,085.18  as  the  gross  value  of  his  life  estate  in  the 
premises,  or  the  proceeds  thereof. 


AKSVITY  TABLES. 


447 


TABLE  Vm 

Shotcing  the  probabilities  of  life  at  all  ages  ;  formed  by  Dr.  Price^ 
from  the  register  of  mortality  at  Northampton^  from  1735 
to  1780. 


Aee. 


Living. 


Decrease. 


Age. 


Liyinp. 


Decrease. 


Age. 


Living. 


3  months, 

6  months 

9  months, 

1  year, . . 

2 

3 

4 

6 

6 

•7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

29 

30 


11650 
10310 
9756 
9203 
8650 
7283 
6781 
6446 
6249 
6065 
5925 
5815 
5735 
5675 
5623 
5573 
5523 
5473 
5423 
5373 
5320 
5262 
5199 
5132 
5060 
4985 
4910 
4835 
4760 
4685 
4610 
4535 
4460 
4385 


1340 

554 

553 

553 

1367 

502 

335 

197 

184 

140 

110 

80 

60 

52 

50 

50 

50 

50 

50 

53 

58 

63 

67 

72 

75 

75 

75 

75 

75 

75 

75 

75 

75 

75 


31 
32 
33 
34 
35 
36 
37 
38 
39 
40 
41 
42 
43 
44 
45 
46 
47 
48 
49 
50 
51 
52 
53 
54 
55 
56 
57 
58 
59 
60 
61 
62 
63 
64 


4310 
4235 
4160 
4085 
4010 
3935 
3860 
3785 
3710 
3635 
3559 
3482 
3404 
3326 
3248 
3170 
3092 
3014 
2936 
2857 
2776 
2694 
2612 
2530 
2448 
2366 
2284 
2202 
2120 
2038 
1956 
1874 
1793 
1712 


75 
75 
75 
75 
75 
75 
75 
75 
75 
76 
77 
78 
78 
78 
78 
78 
78 
78 
79 
81 
82 
82 
82 
82 
82 
82 
82 
82 
82 
82 
82 
81 
81 
80 


65 
66 
67 
68 
69 
70 
71 
72 
73 
74 
75 
76 
77 
78 
79 
80 
81 
82 
83 
84 
85 
86 
87 
88 
89 
90 
91 
92 
93 
94 
95 
96 

Total, 


1632 

1552 

1472 

1392 

1312 

1232 

1152 

1072 

992 

912 

832 

752 

675 

602 

534 

469 

406 

346 

289 

234 

186 

145 

111 

83 

62 

46 

34 

24 

16 

9 

4 

1 


80 
80 
80 
80 
80 
80 
80 
80 
80 
80 
80 
77 
73 
68 
65 
63 
60 
57 
55 
48 
41 
34 
28 
21 
16 
12 
10 
8 
7 
5 
2 
1 


299198 


11650 


The  rule  for  finding  the  expectation  of  a  life  at  any  age,  by  a  table  of  obserra- 
tions,  is  to  "  divide  the  sum  of  all  the  living  in  the  table  at  the  age  whose  expecta- 
tion is  required,  and  at  all  greater  ages,  by  the  sum  of  all  that  die  annually  at  that 
age,  and  above  it ;  or,  which  is  the  same,  by  the  number  (in  the  table)  of  the  living 
at  that  age,  and  half  unity  subtracted  from  the  quotient  will  be  the  required 
expectation." 

Thus,  in  the  last  table,  the  sum  of  all  the  living  at  20  and  upwards,  is  174,155; 
the  number  hving  at  that  age  is  5,132;  and  the  former  number  divided  by  the 
latter,  and  half  unity  subtracted  from  the  quotient,  gives  33.43,  the  expectation  of 
a  life  at  20. 


448 


ANNUITY  TABLES. 


TABLE  IX. 

Showing  the  expectations  of  human  life  at  every  age,  deduced  from 
the  Northamptom  table  of  observations. 


Ages. 

Expecta- 

Ages. 

Expecta- 

Ages. 

Expecta- 

Ages. 

Expecta- 

Ages. 

Expecta- 

tions. 

tions. 

tions. 

tions. 

tions. 

0 

25.18 

20 

33.43 

40 

23.08 

59 

13.68 

78 

5.48 

1 

32.74 

21 

32.90 

41 

22.56 

60 

13.21 

79 

5.11 

2 

37.79 

22 

32.39 

42 

22.04 

61 

12.75 

80 

4.75 

3 

39.55 

23 

31.88 

43 

21.54 

62 

12.28 

81 

4.41 

4 

40.58 

24 

31.36 

44 

21.03 

63 

11.81 

82 

4.09 

5 

40.84 

25 

30.85 

45 

20.52 

64 

11.35 

83 

3.80 

6 

41.07 

26 

30.33 

46 

20.02 

65 

10.88 

84 

3.58 

7 

41.03 

27 

29.82 

47 

19.51 

66 

10.42 

85 

3.37 

8 

40.79 

28 

29.30 

48 

19.00 

67 

9.96 

86 

3.19 

9 

40.36 

29 

28.79 

49 

18.49 

68 

9.50 

87 

3.01 

10 

39.78 

30 

28.27 

50 

17.99 

69 

9.05 

88 

2.86 

11 

39.14 

31 

27.76 

51 

17.50 

70 

8.60 

89 

2.66 

12 

38.49 

32 

27.24 

52 

17  02 

71 

8.17 

90 

2.41 

13 

37.83 

33 

26.72 

53 

16.54 

72 

7.74 

91 

2.09 

14 

37.17 

34 

26.20 

54 

16.06 

73 

7.33 

92 

1.75 

15 

36.51 

35 

25.68 

55 

15.58 

74 

6.92 

93 

1.37 

16 

35.85 

36 

25.16 

56 

15.10 

75 

6.54 

94 

1.05 

17 

35.20 

37 

24.64 

57 

14.63 

76 

6.18 

95 

0.75 

18 

34.58 

38 

24.12 

58 

14.15 

77 

5.83 

96 

0.50 

19 

33.99 

39 

23.60 

These  kind  of  tables  may  be  applied  to  a  variety  of  uses.  For 
instance : 

1.  If  it  be  demanded  what  chance  a  person  of  35  years  has  to  live 
10  years  longer;  from  4,010,  the  number  of  persons  living  at  35 
years  of  age  in  Table  8,  subtract  3,248,  the  number  of  persons 
living  at  45  years  of  age,  and  the  remainder,  762,  is  the  number  of 
persons  that  died  during  these  10  years,  and  the  probability  or 
chance  that  the  person  in  the  question  shall  live  these  10  years,  is 
as  3,248  to  762,  or  4|  to  1. 

2.  To  find  to  what  year  a  person  of  30  years  of  age  has  an  equal 
chance  of  arriving  before  he  dies.  The  number  of  that  age  in  Table 
8  is  4,385,  the  half  whereof  is  2,192,  which  is  found  in  the  table 
between  58  and  59  years ;  so  that  a  person  of  30  years  has  an  equal 
chance  of  living  between  28  and  29  years  longer. 

3.  The  probability,  by  Table  8,  that  a  person  aged  20  shall  live 
10  years  is  \m.  That  a  person  aged  30  shall  live  10  years,  is  |f||. 
That  they  shall  both  live  10  years,  is  -*f|f  X  -J^fs,  or  |ff|.  That 
they  shall  not  both  live  10  years,  but  that  one  or  the  other  of  them 
will  die  previous  thereto,  is 


f  jg4  subtracted  from  unity,  or  sf|^. 


A2WUITY  TABLES.  449 

The  probability  that  one  or  other  of  two  lives  aged  20  and  30 
will  continue  10  years,  is  equal  to  |j||  subtracted  from  22503  ?M 
(or  from  the  sum  of  the  two  quantities  |f  |^  and  f  ff  |),  which  leaves 
Hl^lf  Jo  ^^^'  ^^^®  probability  required.  The  probability  that  both 
the  lives  shall  fail  in  10  years,  is 

(  1   4385  \  V  M  3635  'k  747  V  '50  56  0250 

\  '■  ST32  )  y^   \  '^  4385  ^  5^132  ^    43'85  ^T50T82(J' 

4.  To  find  the  probability  that  three  persons  whose  ages  are  40, 
60  and  60,  respectively,  shall  be  all  living  10  years  hence.  First, 
that  one  of  the  age  of  40  shall  live  10  years  the  probability  is,  by 
Table  8,  fffl ;  that  one  of  50  lives  10  years,  is  fl^f  and  that 
one  of  60  survives  that  term,  is  ^ff|.  The  product  of  these  is 
HH  X  IHf  X  MM  =  36-li  =  i  nearly;  and  consequently  the 
odds  are  two  to  one  that  they  are  not  all  living  10  years  hence. 

5.  To  compute  the  number  of  inhabitants  in  any  place.  Suppose 
the  number  born  annually  be  200,  this  multiplied  by  25.18,  the 
expectation  of  an  infant  just  born,  by  Table  9,  gives  5,036  the  answer. 

In  large  towns  it  appears  that  a  greater  proportion  of  the  inhabit- 
ants die  annually  than  in  small  ones.  In  London  this  proportion 
is  at  the  highest,  1  in  20f ;  in  Norwich,  1  in  24^ ;  in  Northampton, 
1  in  26| ;  in  the  parish  of  Newbury,  Berks,  1  in  27^:  in  the  con- 
tiguous parish  of  Speen,  1  in  31.  According  to  Graunt's  account 
of  a  parish  in  Hampshire,  1  in  50.  In  the  parish  of  Ackworth, 
Yorkshire,  1  in  47. 

In  1,098  country  parishes  mentioned  by  Sulmilch,  the  annual  ave- 
rage of  deaths  for  6  years  was  1  in  43.  In  106  other  parishes  men- 
tioned by  him,  1  in  50.  In  the  dukedom  of  Wurtemberg,  Mr. 
Sulmilch  says,  1  in  32  had  died  annually,  on  an  average  for  5  years. 
In  another  province  which  he  mentions,  1  in  33  died  annually. 

From  these  facts  he  concludes  that,  taking  a  whole  country  in 
gross,  including  all  cities  and  villages,  mankind  enjoy,  among  them, 
about  32  or  33  years  each  of  existence. 


n— 57 


450 


ANNUITY  TABLES 
TABLE  X. 


Showing  tlie  value  of  an  annuity  on  a  single  life,  at  every  age,  according  to  the  prohabili- 
ties  of  the  duration  of  human  life  at  Northampton.     See  Table  VIIJ. 


Age. 

Valae  at 

Value  at 

Value  at 

Age. 

Value  at 

Value  at 

Value  at 

3  per  cent. 

4  per  cent. 

5  per  cent. 

3  per  cent. 

4  per  cent. 

5  per  cent. 

Birth, 

12  270 

10.327 

8.883 

49 

12.693 

11.475 

10.443 

1 

16.021 

13.465 

11.563 

50 

12.436 

11.264 

10.269 

2 

18.599 

15.633 

13.420 

51 

12.183 

11.057 

10.097 

3 

19.575 

16.462 

14.135 

52 

11.930 

10.849 

9.925 

4 

20.210 

17.010 

14.613 

53 

11,674 

10.637 

9.748 

6 

20.473 

17.248 

14.827 

54 

11.414 

10.421 

9.567 

6 

20.727 

17.482 

15.041 

55 

11.150 

10.201 

9.382 

7 

20.853 

17.611 

15.166 

56 

10.882 

9.977 

9.193 

8 

20.885 

17.662 

15.226 

57 

10.611 

9.749 

8.999 

9 

20.812 

17.625 

15  210 

58 

10.337 

9.516 

8.801 

10 

20.663 

17.523 

15.139 

59 

10.058 

9.280 

8.599 

11.... 

20.480 

17.393 

15.043 

60 

9.777 

9.039 

8.392 

12 

20.283 

17.251 

14.937 

61 

9.493 

8.795 

8.181 

13.... 

20.081 

17.103 

14.826 

62 

9.20S 

8.547 

7.966 

U.... 

19.872 

16.950 

14.710 

63 

8.910 

8.291 

7.743 

15.... 

19.657 

16.791 

14.588 

64 

8.611 

8.030 

7.514 

16.... 

19.435 

16.625 

14.460 

65 

8.304 

7.761 

7.276 

17.... 

19.218 

16.462 

14.334 

66 

7.994 

7.488 

7.034 

18.... 

19.013 

16.309 

14.217 

67 

7.682 

7.211 

6.787 

19. . . . 

18.820 

16.167 

14.108 

68 

7.367 

6.930 

6.536 

20.... 

18.638 

16.033 

14.007 

69 

7.051 

6.647 

6.281 

21.... 

18.470 

15.912 

13.917 

70 

6.734 

6  361 

6.023 

22.... 

18.311 

15.797 

13.833 

71 

6.418 

6.075 

5.7C4 

23.... 

18.148 

15.630 

13.746 

72 

6.103 

5.730 

5.504 

24... 

17.983 

15.560 

13.658 

73 

5.794 

5.507 

5.245 

25.... 

17.814 

15.438 

13.567 

74 

5.491 

5.230 

4.990 

26.... 

17.642 

15.312 

13.473 

75 

5.199 

4.962 

4.744 

27.... 

17.467 

15.184 

13.377 

76 

4.925 

4.710 

4.511 

28.... 

17.289 

15.053 

13.278 

77 

4.652 

4.457 

4.277 

29.... 

17.107 

14.9L8 

13.177 

78 

4.372 

4.197 

4.035 

30.... 

16.922 

14.781 

13.072 

79 

4.077 

3.921 

3.776 

31.... 

16.732 

14.639 

12.965 

80 

3.718 

3.643 

3.515 

32.... 

16.540 

14.495 

12.854 

81 

3.499 

3.377 

3.263 

33 

16.343 

14.347 

12.740 

82 

3.229 

3.122 

3.020 

34 

16.142 

14.195 

12.623 

83 

2.982 

2.887 

2.797 

35.... 

15.938 

14.039 

12.502 

84 

2.793 

2.708 

2.627 

36.... 

15.729 

13.880 

12.377 

85 

2.620 

2.543 

2.471 

37.... 

15.515 

13.716 

12.249 

86 

2 .461 

2.393 

2.328 

38.... 

15.298 

13.548 

12.116 

87 

2.312 

2.251 

2.193 

39.... 

15.075 

13.375 

11.979 

88 

2.185 

2.131 

2.080 

40 

14.848 

13.197 

11.837 

89 

2.015 

1.967 

1.924 

41.... 

14.620 

13.018 

11.695 

90 

1.794 

1.758 

1.723 

42 

14.391 

12.838 

11.551 

91 

1.501 

1.474 

1.447 

43 

14.162 

12.657 

11.407 

92 

1.190 

1.171 

1.153 

44 

13.929 

12.472 

11.258 

93 

0.839 

0.827 

0.816 

45 

13.692 

12.283 

11.105 

94 

0.536 

0.530 

0.524 

46 

13.450 

12.089 

10.947 

95 

0.242 

0.240 

0.238 

47.... 

13.203 

11.890 

10.784 

96 

0.000 

0.000 

0.000 

48.... 

12.951 

11.685 

10.616 

The  values  of  annuities  in  this  table  supposes  the  payments  to 
be  made  yearfy,  and  to  begin  at  the  end  of  a  year. 


ANNUITY  TABLES.  451 

If  the  payments  are  to  be  half  yearly,  and  to  be  made  at  the  end 
of  every  half  year  from  the  time  of  purchase,  their  value  will  be 
increased  about  one-fifth  of  a  year's  purchase. 

EXAMPLES. 
1.  A  person  of  50  years  would  purchase  an  annuity  for  life  of 
£200 ;  what  ready  money  ought  he  to  pay,  reckoning  interest  at  5 
per  cent  ? 

By  the  table  the  value  of  £1  is. .       10-269 
Multiply  by 200 


Answer, 2053-800=£2,053  16s. 

2.  An  estate,  value  £500,  falls  to  a  person  on  the  extinction  of  a 
life  aged  65  ;  what  is  the  present  value  of  the  same,  reckoning 
interest  at  4  per  cent  ? 

Interest  being  4  per  cent,  the  perpetuity  by  Table 

2,  is 25  •  000 

Deduct  the  value  of  £1  annuity  for  a  life  of  65, . .     7-761 


17-239 
Then,  as  25  :  17 -239::  500:  34 -478  =  £344  15s.  7c?.,  the  answer. 

Or  the  rent  of  the  estate,  which,  at  4  per  cent,  is  £20.  Multi- 
plied by  17-239  gives  34-478,  the  answer  as  before. 

To  determine  the  annuity  that  ought  to  be  received  for  any  given 
sum,  divide  such  sura  by  the  number  of  years'  purchase.  Thus,  if 
a  person  aged  50  wished  to  lay  out  £2,000  in  the  purchase  of  an 
annuity,  interest  5  per  cent,  the  annuity  will  be  found  by  dividing 
2,000  by  10-269;  whence  194-76,  or  £194  15s.  2d.,  will  be  the 
annuity  required. 

To  find  the  value  of  an  annuity  of  £l  on  the  joint  continuance 
of  two  lives  having  the  same  common  age,  one  life  failing  the  annu- 
ity to  cease : 

Ruh.  Look  in  Table  8  for  the  number  of  persons  represented. as 
living  at  one  year  more  than  the  age  given,  square  that  number,  then 
multiply  by  the  present  value  of  £l  certain  to  be  received  at  the 
end  of  one  year,  found  by  Table  1 ,  and  that  product  divided  by  the 
square  of  the  number  of  persons  represented  as  living  at  the  age 
given,  will  produce  the  present  value  of  the  first  year's  payment 
of  the  annuity  of  £I,  which  is  to  be  made  to  the  purchaser  at  the 
end  of  one  year  from  the  time  of  granting  it,  provided  both  he  and 
his  companion  are  then  alive. 

In  like  manner  proceed  to  the  end  of  the  table,  and  the  sum  of 
all  the  values  will  be  the  worth  of  the  annuity. 


452 


AKNUITY  TABLES. 


TABLE  XI. 

Showing  the  value  of  an  annuity  on  the  joint  continicance  of  two 
lives,  having  the  same  common  age. 


Age. 

Value  at 

Value  at 

Value  at 

Age. 

Value  at 

Value  at 

Value  at 

3  per  cent. 

4  per  cent. 

5  per  cent. 

49 

3  per  cent. 

4  per  cent 

5  per  cent. 

1 

9.490 

8.252 

7.287 

8.930 

8.266 

7.686 

2 

12.789 

11.107 

9.793 

50 

8.714 

8.081 

7.522 

3 

14.196 

12.325 

10.862 

51 

8.507 

7.900 

7.366 

4 

15.181 

13.185 

11.621 

52 

8.304 

7.723 

7.213 

5 

15.638 

13.591 

11.984 

53 

8.098 

7.544 

7.056 

6 

16.099 

14.005 

12.358 

54 

7.891 

7.362 

6.897 

7 

16.375 

14.224 

12.596 

55 

7.681 

7.179 

6.735 

8 

16.510 

14.399 

12.731 

56 

7.470 

6.993 

6.571 

9 

16.483 

14.396 

12.744 

57 

7.256 

6.805 

6.404 

10 

16.339 

14.277 

12.669 

58 

7.041 

6.614 

6.234 

11 

16.142 

14.133 

12.546 

59 

6.824 

6.421 

6.062 

12 

15.926 

13.966 

12.411 

60 

6.606 

6.226 

5.888 

13 

15.702 

13.789 

12.268 

61 

6.386 

6.030 

5.712 

14 

15.470 

13.604 

12.118 

62 

6.166 

5.831 

5.533 

15 

15.229 

13.411 

11.960 

63 

5.938 

5.626 

5.347 

16 

14.979 

13.212 

11.793 

64 

5.709 

5.417 

5.158 

17 

14.737 

13.019 

11.630 

65 

5.471 

5.201 

4.960 

18 

14.516 

12.841 

11.483 

66 

5.231 

4.982 

4.759 

19 

14.316 

12.679 

11.351 

67 

4.989 

4.760 

4.555 

20 

14.133 

12.535 

11.232 

68 

4.747 

4.537 

4.348 

21 

13.974 

12.409 

11.131 

69 

4.504 

4.312 

4.140 

22 

13.830 

12.293 

11.042 

70 

4.261 

4.087 

3.930 

23 

13.683 

12.179 

10.951 

71 

4.020 

3.862 

3.719 

24 

13.534 

12.062 

10.858 

72 

3.781 

3.639 

3.510 

25 

13.383 

11.944 

10.764 

73 

3.548 

3.421 

3.304 

26 

13.230 

11.822 

10.667 

74 

3.324 

3.211 

3.105 

27 

13.074 

11.699 

10.567 

75 

3.114 

3.015 

2.917 

28 

12.915 

11.573 

10.466 

76 

2.926 

2.833 

2.750 

29 

12.754 

11.445 

10.362 

77 

2.741 

2.656 

2.583 

30 

12.589 

11.313 

10.255     ; 

78 

2.550 

2.470 

2.410 

31 

12.422 

11.179 

10.146 

79 

2.338 

2.271 

2.217 

32 

12.252 

11.042 

10.034 

80 

2.122 

2.068 

2.018 

33 

12.079 

10.902 

9.919 

81 

1.917 

1.869 

1.827 

34 

11.902 

10.759 

9.801 

82 

1.719 

1.681 

1.642 

35 

11.722 

10.612 

9.684 

83 

1.538 

1.510 

1.472 

36 

11.539 

10.462 

9.555 

84 

1.416 

1.387 

1.357 

37 

11.351 

10.307 

9.427 

85 

1.309 

1.339 

1.256 

38 

11.160 

10.149 

9.294 

86 

1.218 

1.195 

1.171 

39 

10.964 

9.986 

9.158 

87 

1.141 

1.124 

1.098 

40 

10.764 

9.820 

9.016 

88 

1.103 

1.030 

1.063 

41 

10.565 

9.654 

8.876 

89 

1.036 

1.015 

l.OOl 

42 

10.369 

9.491 

8.737 

90 

0.938 

0.922 

0.909 

43 

10.175 

9.326 

8.599 

91 

0.769 

0.756 

0.748 

44 

9.977 

9.160 

8.457 

92 

0.591 

0.583 

0.576 

45 

9.776 

8.990 

8.312 

93 

0.369 

0.365 

0.361 

46 

9.571 

8.815 

8.162 

94 

0.203 

0.201 

0.199 

47 

9.362 

8.637 

8.008 

95 

0.060 

0.060 

0.059 

48 

9.149 

8.453 

7.849 

96 

0.000 

0.000 

0.000 

ANNUITY  TABLES.  453 


EXAMPLES. 

1.  An  annuity  of  £400  depends  on  the  joint  lives  of  two  persons, 
aged  30  years  each,  either  of  which  failing,  the  annuity  to  cease; 
what  is  the  value,  reckoning  interest  at  4  per  cent  ? 

Value  of  an  annuity  of  £l,  per  table,  is       11  •  313 
Multiply  by  the  annuity,  per  table, ....  400 


Answer,   4525-200=i;4,525  45. 

2.  A  legacy  of  £500  is  to  be  received  on  the  death  of  either  of 
two  persons,  aged  73  years  each;  what  is  the  value,  reckoning 
interest  at  5  per  cent  ? 

Interest  being  5  per  cent,  the  perpetuity  by  table 

2  is 20. 

Deduct  value  of  £1  annuity,  per  the  above  table,     3-304 


16-696 

As  20  :  16-696  ::  500  :  £417  8s.,  answer. 

But  if  the  legacy  be  not  due  till  12  months  after  the  extinction 
of  the  lives,  £417- 8s.  must  be  divided  by  1-05  (the  amount  of  £1 
in  a  year),  and  the  answer  will  be  £367  10s.  5c?. 

To  find  the  value  of  an  annuity  of  £1  on  the  joint  continuance 
of  two  lives,  differing  in  age ;  one  life  failing  the  annuity  to  cease. 

Mule.  Multiply  the  product  of  the  number  in  table  8,  opposite 
one  year  older  than  the  youngest  age  given,  and  the  number  oppo- 
site one  year  older  than  the  oldest  age  given,  by  the  value  of  £1, 
certain  to  be  received  at  the  end  of  one  year,  and  then  divide  by 
the  product  of  the  two  numbers  opposite  the  ages  given ;  the  quo- 
tient will  be  the  first  year's  payment  of  the  annuity  of  £1,  which 
is  to  be  made  to  the  purchaser  at  the  end  of  a  year  from  the  time 
of  granting  it,  provided  both  he  and  his  companion  are  then  alive. 

In  like  manner  proceed  to  the  end  of  the  table,  and  the  sum  of 
all  the  values  will  be  the  worth  of  the  annuity. 


454 


AUNUITY  TABLES. 


TABLE  XV. 

Showing  the  value  of  an  annuity  o?i  the  joint  continuance  of  two 
lives.     Difference  of  age^  20  years. 


Value  at 

Value  at 

Value  at 

Value  at 

Value  at 

Value  at 

ASKS. 

3  per  cent. 

4  per  cents 

5  per  cent. 

AGES. 

3  per  cent. 

4  per  cent 

5  per  cent 

1-21.. 

11.413 

10.053 

8.961 

39-59. . 

8.253 

7.689 

7.189 

2-22.. 

13.172 

11.605 

10.344 

40-60.. 

8.025 

7.490 

7.015 

3-23.. 

13.794 

12.161 

10.843 

41-61.. 

7.796 

7.290 

6.838 

4-24.. 

14.178 

12.511 

11.163 

42-62.. 

7.566 

7.088 

6.660 

6-25.. 

14.301 

12.633 

11.281 

43-63.. 

7.332 

6.881 

6.477 

6-26.. 

14.420 

12.754 

11.400 

44-64.. 

7.095 

6.671 

6.289 

7-27.. 

14.451 

12.798 

11.452 

45-65 . . 

6 .  850 

6.453 

6.094 

8-28.. 

14.417 

12.786 

11.455 

46-66.. 

6.602 

6.234 

5.894 

9-29 . . 

14.310 

12.710 

11.401 

47-67.. 

6.351 

6.004 

5.690 

10-30.. 

14.150 

12.586 

11.304 

48-68.. 

6.096 

5.774 

5.481 

11-31.. 

13.965 

12.441 

11.188 

49-69.. 

5.839 

5.541 

5.268 

12-32.. 

13.770 

12.286 

11.062 

50-70.. 

5.582 

5.306 

5.054 

13-33.. 

13.570 

12.125 

10.932 

51-71.. 

5.328 

5.474 

4.841 

14-34. . 

13.363 

11.955 

10.796 

52-72.. 

5.077 

4.845 

4.630 

15-35. . 

13.151 

11.787 

10.655 

5.3-73.. 

4.828 

4.614 

4.417 

16-36.. 

12.932 

11.609 

10.507 

54-74. . 

4.585 

4.389 

4.208 

17-37.. 

12.714 

11.430 

10.358 

55-75.. 

4.350 

4.171 

4.009 

18-38.. 

12.502 

11.257 

10.214 

56-76.. 

4.129 

3.966 

3.815 

19-39.. 

12.297 

11.089 

10.074 

57-77.. 

3.908 

3.761 

3.623 

20-40.. 

12.096 

10.924 

9.937 

58-78.. 

3.682 

3.549 

3.424 

21-41.. 

11.906 

10.768 

9.809 

59-79.. 

3.440 

3.322 

3.210 

22^2.. 

11.723 

10.619 

9.685 

60-80.. 

3.197 

3.092 

2.992 

23-43.. 

11.540 

10.470 

9.562 

61-81.. 

2.964 

2.870 

2.782 

24r-44. . 

11.354 

10.317 

9.435 

62-82.. 

2.739 

2.656 

2.578 

25^5.. 

11.164 

10.160 

9.304 

63-83 . . 

2.530 

2.457 

2.387 

26-46". . 

10.970 

10.000 

9.170 

64-84.. 

2.371 

2.305 

2.242 

27-47.. 

10.773 

9.836 

9.032 

65-85 . . 

2.223 

2.163 

2.107 

28-48.. 

10.572 

9.667 

8.890 

66-86.. 

2.089 

2.035 

1.984 

29-49 . . 

10.366 

9.495 

8.744 

67-87.. 

1.963 

1.915 

1.870 

30-50.  . 

10.160 

9.321 

8.596 

68-88.. 

1.860 

1.817 

1.777 

31-51.. 

9.957 

9.151 

8.451 

69-89.. 

1.721 

1.685 

1.650 

32-52.. 

9.755 

8.980 

8.306 

70-90.. 

1.545 

1.515 

1.486 

33-53 . . 

9.550 

8.806 

8.157 

71-91.. 

1.303 

1.280 

1.259 

34-54. . 

9.342 

8.629 

8.005 

72-92.. 

1.044 

1.028 

1.012 

35-55.. 

9.131 

8.448 

7.849 

73-93.. 

0.743 

0.733 

0.723 

36-56.. 

8.916 

8.264 

7.690 

74-94.. 

0.480 

0.474 

0.469 

37-57.. 

8.698 

8.076 

7.527 

75-95.. 

0.219 

0.217 

0.215 

38-58.. 

8.477 

7.884 

7.360 

Examples. 
1.  What  is  the  value  of  an  annuity  of  £60  per  annum,  held  on 
the  joint  continuance  of  two  lives,  aged  67  and  87,  interest  5  per 
cent? 

Value  of  £1,  by  the  table  is       1,870 
Multiply  by  the  annuity,  60 


Answer,  £112  45. 


112.000 


ANNUITY  TABLES.  455 

2.  A  legacy  of  £100  is  to  be  received  on  the  decease  of  two 
joint  lives,  aged  33  and  53  ;  what  is  the  value  thereof,  reckoning 
interest  at  5  per  cent  ? 

Interest  being  5  per  cent,  the  perpetuity  is  20. 

Value  by  the  table        8.157 

11.843 
Multiply  by  the  interest  for  a  year  5 


59.215 
It  is  supposed  that  the  legacy  is  not  received  till  twelve  montha 
after  the  decease  of  the  joint  lives ;  therefore,  to  find  the  value, 
69.215  must  be  divided  by  1.05  (the  amount  of  £1  in  a  year),  and 
the  answer  is  56.395  =£56  7s.  lOfc?. 

PROBLEM   II. 

To  find  the  value  of  a  reversionary  estate  in  fee,  after  the  life  of 
a  person  of  a  given  age. 

Rule.  Subtract  the  value  of  the  life  in  possession  from  the  perpe- 
tuity, then  multiply  the  remainder  by  the  rent,  and  the  product  will 
be  the  value  required. 

Question.  An  estate,  valued  £1,000,  falls  to  a  person  on  the  death 
of  a  life  aged  55,  what  is  the  present  value  thereof,  reckoning  inter 
est  5  per  cent  ? 

Interest  being  5  per  cent,  the  perpetuity  is 20 '000 

The  value  of  £1  annuity  for  a  life  of  55,  by  Table 

10,  is 9-832 


The  value  of  £1  per  annum,  as  per  following 

table  = 10-618 

Multiply  by  the  rent, 50 

530-900 
Answer,  £530  18«. 


456 


ANNUITY  TABLES. 


TABLE    XXXII. 

Shoioing  the  present  value  of  a  reversionary  estate  in  fee,  after  the 
life  of  a  person  of  a  given  age. 


h 

Value  at 

Value  at 

Value  at 

eg 

Value  at 

Value  at 

Value  at 

3  per  cent. 

4  per  cent. 

5  per  cent. 

|i 

3  per  cent. 

4  per  cent. 

5  per  cent 

6 

12.860 

7.752 

5.173 

63 

24.423 

16.709 

12.258 

10 

12.670 

7.477 

4.861 

64 

24.722 

16.970 

12.486 

15 

13.676 

8.209 

5.412 

65 

25.029 

17.239 

12.724 

20 

14.695 

8.967 

5.993 

66 

25.339 

17.512 

12.966 

25 

15.519 

9.562 

6.433 

67 

25.651 

17.789 

13.213 

30 

16.411 

10.219 

6.928 

68 

25.966 

18.070 

13.464 

35 

17.395 

10.961 

7.498 

60 

26.282 

18.753 

13.719 

40 

18.485 

11.803 

8.163 

70 

26.599 

18.639 

13.977 

45 

19.641 

12.717 

8.895 

71 

26.915 

18.925 

14.236 

50 

20.897 

13.736 

9.731 

72 

27.230 

19.210 

14.496 

51 

21.150 

13.943 

9.903 

73 

27.539 

19.493 

14.755 

52 

21.403 

14.151 

10.075 

74 

27.842 

19.770 

15.010 

53 

21.659 

14.363 

10.252 

75 

28.134 

20.038 

15.256 

64 

21.919 

14.579 

10.433 

76 

28.408 

20.290 

15.489 

55 

22.183 

14.799 

10.618 

77 

28.681 

20.543 

15.723 

66 

22.451 

15.023 

10.807 

78 

28.961 

20.803 

15.965 

57 

22.722 

15.251 

11.001 

79 

29.256 

21.079 

16.224 

58 

22.996 

15.484 

11.199 

80 

29.552 

21.357 

16.485 

59 

23.275 

15.720 

11.401 

85 

30.713 

22.457 

17.529 

60 

23.556 

15.961 

11.608 

90 

31.539 

23.242 

18.277 

61 

23.840 

16.205 

11.819 

95 

33.091 

24.760 

19.762 

62 

24.128 

16.453 

12.034 

EXAMPLE. 

What  is  the  value  of  a  reversionary  estate,  value  £2,500,  after 
tJie  life  of  a  person  aged  60,  reckoning  interest  4  per  cent  ? 

Opposite  60  and  under  4  per  cent,  is 15  •  961 

Multiply  by  the  rent,  which,  at  4  per  cent,  is. . .  100 

1596-1 
Answer,  £1,596  25. 

PROBLEM  m. 

To  find  the  value  of  a  reversionary  estate  in  fee,  after  the  decease 
of  either  of  two  given  lives. 

Rtile.  Subtract  the  value  of  the  lives  in  possession  from  the  per- 
petuity, then  multiply  the  remainder  by  the  rent,  and  the  product 
will  be  the  value  required. 

Question.  An  estate,  value  £400,  falls  to  a  person  on  the  extinc- 
tion of  either  of  two  lives,  aged  40  and  60 ;  what  is  the  present 
value  thereof,  reckoning  interest  at  4  per  cent  ? 


ANNUITY  TABLES. 


457 


The  interest  being  4  per  cent,  the  perpetuity  is. .     25  •  000 
The  value  of  two  lives,  by  Table  15,  is 7  •  490 

The  value  of  £1  per  annum,  as  per  following 

table,  = 17-510 

Multiply  by  the  rent,  which,  at  4  per  cent,  is. . .  160 

105-060 
175-100 


Answer,  £280  35.  2^d. 


280-160 


TABLE    XXXm. 

Showing  ike  present  value  of  a  reversionary  estate  in  fee,  after  th^ 
extinction  of  either  of  two  given  lives. 


Ages  in 

Value  at 

Value  at 

Value  at 

Ages  in 

Value  at 

Value  at 

Value  at 

possess- 
ion. 

3  per  cent. 

4  per  cent. 

5  per  cent. 

possession. 

3  per  cent. 

4  per  cent. 

5  pr  cent. 

10 

10 

16.994 

10.723 

7.335 

30 

60 

24.955 

17.198 

12.708 

10 

20 

18.182 

11.645 

8.094 

30 

70 

27.290 

19.271 

14.558 

10 

30 

19.183 

12.414 

8.696 

30 

80 

29.803 

21.594 

16.710 

10 

40 

20.542 

13.487 

9.558 

10 

50 

22.289 

14.915 

10.740 

40 

40 

22.569 

15.180 

10.984 

10 

60 

24.381 

16.686 

12.250 

40 

50 

23.743 

16.166 

11.823 

10 

70 

26.986 

18.992 

14.300 

40 

60 

25.308 

17.510 

12.985 

10 

80 

29.686 

21.483 

16.605 

40 

70 

27.462 

19.429 

14.702 

40 

80 

29.864 

21.651 

16.764 

20 

20 

19.200 

12.465 

8.768 

20 

30 

20.047 

13.127 

9.293 

50 

50 

24.619 

16.919 

12.478 

20 

40 

21.237 

14.076 

10.063 

50 

60 

25.872 

18.011 

13.432 

20 

50 

22.810 

15.370 

11.139 

50 

70 

27.751 

19.694 

14.946 

20 

60 

24.736 

17.005 

12.537 

50 

80 

29.971 

21.753 

16.860 

20 

10 

27.184 

19.174 

14.468 

20 

80 

29.764 

21.557 

16.675 

60 

60 

26.727 

18.774 

14.112 

60 

70 

28.194 

20.100 

15.320 

30 

30 

20.744 

13.687 

9.745 

60 

80 

30.136 

21.908 

17.008 

30 

40 

21.765 

14.510 

10.424 

30 

50 

23.173 

15.679 

11.404 

70 

70 

29.072 

20.913 

16.070 

EXAMPLE. 
What  is  the  value  of  the  reversion  of  an  estate,  value  £500,  to 
be  enjoyed  after  the  death  of  either  of  two  persons,  aged  30  and 
40,  reckoning  interest  at  5  per  cent  ? 

Opposite  30  and  40,  and  under  5  per  cent,  is  . . .     10-424 
Interest  being  5  per  cent,  the  rent  is 


Answer,  £260  125. 


25 

52-120 
208-480 

260-600 


PROBLEM   IV. 

To  find  the  value  of  the  reversion  of  an  annuity  of  one  life,  after 
another. 

n— 58 


458 


ANNUITY  TABLES. 


Eide.  From  the  value  of  the  life  in  expectation  subtract  the 
value  of  the  two  joint  lives,  and  the  remainder  will  be  the  value 
of  the  reversion  of  £1  per  annum. 

Question.  A  man  and  his  wife,  each  40  years  of  age,  are  desirous 
of  securiiio-  an  annuity  to  the  latter  after  the  death  of  the  former, 
provided  she  be  the  survivor ;  what  is  the  present  value  thereof, 
reckoning  interest  5  per  cent  ? 

The  value  of  a  single  life  aged  40,  by  Table  10,  is     11-  837 
Ditto  of  two  joint  lives,  each  40,  by  Table  1 1,  is       9-016 


The  value  of  ill  per  annum,  as  per  the  following 
table, 


2-821 


TABLE  XXXIV. 

Showing  the  value  of  the  reversion  of  an  annuity  on  a  single  life., 
after  any  other  single  life  in  possession. 


©•3 

C  5;J 

11 

Value  at 
3  per  cent. 

Value  at 
4  per  cent. 

Value  at 
5  per  cent 

Si 

It 

Is 

Value  at 
3  per  cent. 

Value  at 
4  per  cent 

Value  at 
6  pr  cent 

10 

30 

6.513 

4.937 

3.325 

40 

30 

3.280 

2.707 

2.261 

10 

40 

7.872 

6.010 

4.697 

40 

40 

4.084 

3.377 

2.821 

10 

50 

9.619 

7.438 

5.879 

40 

50 

5.258 

4.363 

3.660 

10 

60 

11.711 

9.209 

7.389 

40 

60 

6.823 

5.707 

4.822 

10 

70 

14.316 

11.515 

9.439 

40 

70 

8.977 

7.626 

6.539 

10 

80 

17.016 

14.006 

11.744 

40 

80 

11.379 

9.848 

8.601 

20 

30 

5.370 

4.160 

3.300 

50 

30 

2.276 

1.943 

1.673 

20 

40 

6.542 

5.109 

4.070 

50 

40 

2.846 

2.430 

2.092 

20 

50 

8.115 

6.403 

5.146 

50 

50 

3.722 

3.183 

2.747 

20 

60 

10.041 

8.038 

6.544 

50 

60 

4.975 

4.275 

3.701 

20 

70 

12.489 

10.207 

8.475 

50 

70 

6.854 

5.958 

5.215 

20 

80 

15.069 

12.590 

10.682 

50 

80 

9.074 

8.017 

7.129 

30 

30 

4.333 

3.468 

2.817 

60 

30 

1.399 

1.237 

1.100 

30 

40 

5.354 

4.291 

3.496 

60 

40 

1.752 

1.549 

1.377 

30 

50 

6.762 

5.460 

4.476 

60 

50 

2.316 

2.050 

1.824 

30 

60 

8.544 

6.979 

5.780 

60 

60 

3.171 

2.813 

2.504 

30 

70 

10.879 

9.052 

7.630 

60 

70 

4.638 

4.139 

3.712 

30 

80 

13.392 

11.375 

9.782 

60 

80 

6.580 

5.947 

5.400 

EXAMPLE. 
What  is  the  present  value  of  an  annuity  of  £50  per  annum,  to  be 
enjoyed  by  a  life  aged  20,  provided  it  survives  another  life  aged  60, 
reckoning  interest  5  per  cent  ? 

Opposite  20  and  50,  and  under  5  per  cent,  is  . . .       5-146 
Multiply  by  the  annuity, 50 


Answer,  £257  6a. 


257-300 


INDEX. 


A. 

Page. 
ADMEASURMENT  OF  DOWER,  276 
(See  Dower.) 

AFFIDAVIT  OF  SALE  {of  mortgaged 
premises) : 

By  whom  made 273 

The  nature-  of,  where  the  mort- 
gagee is  the  purchaser, 273 

"What  it  must  contain, 273,  274 

By  whom  it  may  be  taken 273 

When  and  how  to  be  recorded,  .   273 
When  made  and  filed  on  a  sub- 
stitute for  a  deed, 274 

AFFIDAVIT : 

Preliminary,  in  proceedings  sup- 
plementary to  executions, .     85 

What  it  must  allege,  &c.,  85,  90,     91 

AMENDMENTS  OP  JUDGMENTS: 

When  they  may  be  made, 11 

What  amendments   will    be   al- 
lowed,    11,  12,  13 

Does  not  extend  to  jurisdictional 

defects, 13 

When  judgment  may  be  set  aside,  14 

When  the  application  is  made,  . .  16 

APPEALS,  THE  COURT  OF: 
General  observations  thereon, ...   109 
Has  taken  the  place  of  the  court 
for  the  correction  of  errors, . . .   109 

Its  jurisdiction,  &c., 109 

Acts  only  upon  the  actual  and 
final  orders,  or  judgments,  of 

the  Supreme  Court, 110 

Is  strictly  an  appellate  at  court, .   110 
Appeal  to,  &c., 118 

APPEAL: 

The  only  mode  of  review  in  civil 
actions, Ill 


Appeal  —  Continued. 

Applicable  in  special  proceedings,  111 

When  it  will  lie  from  a  judg- 
ment or  order, Ill 

The  judgment   must  be   actual, 

not  merely  formal, Ill 

Is  in  the  nature  of  a  new  action,  115 

Who  may  appeal, 115 

Parties  to,  how  designated, 115 

Attorneys  in  the  action  deemed  to 

be  continued, 115 

How  made, 115 

The  notice  of,  must  be  properly 

given,    115 

Time  of,  cannot  be  extended,  ...  116 

Judgment  on, 116 

Only  such  parts  as  are  appealed 
from  can  be  reviewed, 116 

And  in  favor  of  only  such  par- 
ties, &c., 116 

Irregularities  in  appeal, 117 

Objections   on   account  of,  how 

taken,    117 

How  appeal  is  continued, 117 

How  waived 117 

To  court  of  appeals 118 

When  from  a  judgment, 118 

Within  what  time  to  be  brought,  119 

How  to  be  brought, 119 

First  step,  nature  of  appeal,  ....   119 
Its  requisites  and  service,  Ac, ...   119 
From  an  order  granting  a  new 
trial,  what,  119 

Notice  of  appeal  how  served, ...  119 

The  undertaking  in, 119 

What  is  essential  thereto 119 

If  a  stay,  &g.,  is  desired,  what, . .  120 

Extent  of  stay, 121 

When  the  appeal  is  deemed  per- 
fected   121 


u 


INDEX. 


ArPEAL  — Continued.  Page. 

When  security  may  be  dispensed 

with 121 

Undertaking  must  be  filed, 121 

When, 121 

Surety  to  justify, 122 

Stay  in  case  of  perishable  pro- 
perty, &c., 122 

Stay  on  appeals  from  orders,  ...  122 

Excepting  to  sureties, 122 

How  conducted, 122 

Justification  of  sureties, 123 

Allowance  of  bail 123 

When  sureties  faU  to  justify,  oth- 
ers to  be  substituted, 123 

Must  justify  immediately, 123 

Failing  to  justify,  no  appeal,  &c.,  123 
Additional    security,    when    re- 
quired,    123 

Deposit  in  lieu  of  undertaking, . .  124 

Respondent's  appearance, 124 

Filing  return, 124 

Return  to  appeal, 124 

Appellant    failing  to    procure   a 

proper  return, 124 

Time  to  file  return,  how  extended,  125 

Order  for  further  return, 125 

Costs  on  appeal, 125 

Printing  and  serving  a  case, .  125 

Relief  from  dismissal, 126 

When  return  or  case  is  imperfect,  126 
How  to  proceed  when  no  case  is 

made  or  served, 127 

Notice  of  argument, 127 

Calendar, 127 

Preparation  for  argument 128 

Calendar  practice, 128 

Submitting  cause, 129 

Argument, 129 

Error  in  case, 129 

Re-argument, 129 

The  decision  and  remittitur,  ....  130 

Entry  of  judgment 130 

Appeals  from  orders, 131 

Motions, 131 

Actions  upon  undertaking,  how 

and  when,    131 

Discontinuing  appeal, 131 

To  the  general  term  of  the  supreme 
court: 

From  what  inferior  courts, 132 


Appeal  —  Continued.  Page. 

Time  within  which  it   must  be 

taken, 132 

If  from  a  judgment, 132,  133 

Notice  of  appeal, 133 

Security, 133 

Return,  upon  an  appeal  from  a 

judgment, 133 

Notice  of  argument,  what, 133 

Note  of  issue, 134 

Case  on  appeal  and  its  requisites,  134 

Points,  &c., 134 

The  argument,  how  conducted, . .  135 

Decision,  &c., 135 

What  errors  revived, 135 

Judgment, 136 

Appeals  from  orders, 132,  136 

What  are  applicable, 136 

When  the  order  must  be  entered 

prior  to  appeal, 137 

Orders  of  a  county  judge  acting 
as  a  justice  of  the  supreme 
court  at  chambers,  how  ap- 
pealed from, 137 

Preparation  for  argument, 137 

Decision  and  judgment 137 

From  surrogate's  court 138 

When  taken  to,  and  heard, 138 

In  what  cases  it  will  lie  and  when 

to  be  brought, 138 

When  it  does  not  lie, 139 

Who  may  bring  the  appeal, 139 

Manner  of  bringing  the  appeal, .   139 
Bond,  and  stay  of  proceedings, . .   140 

Form  of,  &c.  (note), 140 

Petition  of  appeal  to  be  filed,  . . .   141 

What  it  must  state, 141 

Form  of  (note), 142 

When  respondent  is  a  minor,  . . .   142 
When  appellant  omits  to  file  peti- 
tion of  appeal, 142 

Serving  petition  of  appeal, 143 

Respondent  failing  to  answer,  . .   143 

Dismissing  appeal, 143 

Notice  of  appearance  and  order 

of  service  of  petition,  &c., 144 

Answer,    144 

Form  of,  (note), 144 

Return, 144 

Compelling  the  same 145 

Failure  to  procure  return, 145 


INDEX. 


m 


Appeal  — Continued.  Page. 

Defective  return, 145 

Hearing  on  appeal, 145 

Determination  of  appeal, 146 

Costs,  judgment,  &c., 147 

Appeal  to  the  court  of  appeals, .  147 
From  a  single  judge  to  the  general 

term,    147 

From  a  referee,  &c.,   147,  148 

J^om  a  judgment  : 

The  judgment  must  be  a  final 

one, 148 

When  the  appeal  must  be  brought,  148 

"Written  notice  of  the  judgment  is 
necessary  to  limit  the  time  of 

the  appeal 148 

How  the  time  is  to  be  computed,  148 
Notice  of  appeal,  how  given,  . . .  149 
Security  and  stay  of  proceedings,  149 

How  brought  to  a  hearing, 150 

Motion  to  dismiss, 150 

Hearing  and  determination,  ....  150 
When  a  new  trial  will  be  granted,  150 

When  not,  &c 151 

May  reverse,  affirm  or  modify  the 

judgment, 152 

How  to  proceed  in  either  case, . .   152 

Who  is  entitled  to  costs, 152 

Judgment    and    the     certificate 
thereof,   153 

Compelling  the  entry  of  judgment 
when  necessary, 153 

Appeals  from  orders  : 

When  such  appeals  lie, ....   153,  154 

Wlien  to  appeal  in  such  cases,  . ,   154 

Notice  of  appeal, 154 

How  prepared  for  a  hearing,. . . .  154 

How  determined, 155 

Costs  in  such  cases 155 

(See  Case  and  exceptions.) 

In  mandamus, 203 

In  prohibition, 205 

In  habeas  corpus, 228 

In  arbitration 257 

APPELLANT: 

In  appeal, 115 

Must    serve    notice    of    appeal, 
how,  115,  119 

Notice  how  served,  &c., 119 

(See  Appeal.) 


Appellant  —  Continued.                      Page. 
When   he   fails   to  procure    the 
proper  return, 124 

ARBITRATIONS: 

An  arbitration  defined, 20,  236 

The  submi.*sion  under  the  statute 

and  at  common  law 237 

Who  may  submit  matters  to  ar- 
bitrators    237 

What  matters  may  be  submitted,  238 

The  submission,  its  nature, 239 

Of  the  construction  of  a  submis- 
sion,     240 

Of  the  revocation  thereof, 241 

Arbitrator  as  differing  from  um- 
pire,    242 

The  authority  of  each,  &c., .  242,  243 
Testimony  of  the  arbitrators, ....  244 
Proceedings  on  the   submission, 

notice,  254 

Arbitrators  to  be  sworn,  &c.,. . . .  244 
The  examination  of  witnesses, . .   245 
The  hearing  before  the  arbitra- 
tors   245 

Notice  to  the  parties, 245 

Arbitrators  must  meet  together, .   245 

The  award,  how  made,   246 

When  it  must  be  made, 247 

How  under  the  statute, 247 

By  whom  made, 248 

The  authority  of  the  arbitrators 

in  making  their  award, 249 

The  award  must  be  complete,   . .   250 

Must  be  certain, 251 

Must  be  final  and  mutual, 252 

The  form  thereof, 252 

The   interpretation  or  construc- 
tion     ...  253 

The  efiect  of  a  void  part  thereof,  253 

The  effect  of  the  award, 254 

Proceedings    subsequent    to  the 

award, 254 

Confirmation  and  judgment  there- 
on,    254 

Proceeding  to  vacate  the  award,  255 

The  application 256 

The  power  of  the  court  thereon, .  256 
They  may  modify  the  award,  . . .   256 

Appeals,  &c., 258 

Submission  to,  &c., 237  to  239 

Arbitrators  and  umpire,  dlflference  242 
The  authority  of, 242 


IV 


INDEX. 


Arbitrations  — Conllnued.  Page. 

Testimony  of, 244 

Must  be  sworn.  &c., 244 

May  swear  witnesses, 245 

Hearing  before, 245 

Must  meet  together, 246 

Must  unite  in  making  the  award, 

246,   248 

Their  authority  in  so  doing, 249 

ARGUMENT : 

Preparation  for,  &c., 128 

Notice  of, 127 

One  counsel  on  each  side, 129 

Ke-argument, 129 

ARREST : 
Of  debtor  in  proceedings  supple- 
mentary to  execution, 86 

Proceedings  on  arrest, 86 

ASSIGNMENTS,  VOLUNTARY  : 
(See  Voluntary  OrSsignmenis.) 

ATTACHED  PROPERTY:- 

Execution  against, 30 

How  executed, 30,     31 

AUCTION  : 

Sale  under  execution, 50 

Sale  of  mortgaged  premises  must 
be  at  public  auction, 270 

AWARD : 

The  general  requisites  of 245 

The    Revised    Statutes  fias  not 
abrogated  the  common  law, . .  247 

By  wliom  to  be  made, 246,  248 

When  to  be  made, 247 

Need  not  be  delivered  within  the 

time, 247 

Its  particular  requisites, 250 

It  must  be  complete, 250 

It  must  be  certain  to  a  common 

intent, 251 

It  must  be  final 252 

It  must  be  mutual, 252 

The  form  thereof, 252 

The  interpretation  thereof, 253 

The  effect  of  any  void  part  there- 
of,     253 

The  effect  of, 254 

Proceedings  subsequent  to, 254 

Confirmatiou  of, •. .  254 


Award  —  Continued.  Page. 

Judgment  thereon, 254 

Proceedings  to  vacate, 255 

Application  to  modify, 256 


B. 

BAIL: 

Allowance  of,  on  appeal, 123 

Failing  to  justify,  what, 123 

BILLS  OF  PARTICULARS: 
To  be  filed  to  obtain  lien  on  ships 

and  vessels,  &c., 336 

In  mechanics'  lien,  to  be  filed, . .  289 

BOND: 

Execution  of  judgment  for  pen- 
alty of, 31 

Execution  of  judgment  for  penalty 
other    than    the    payment    of 

money, 32 

For  the  jail  liberties,  &c., 73 

Its  objects  and  requisites, ...   73,     74 
In    collecting    demands    against 
ships  and  vessels, 340 


0. 

CALENDAR: 
When  made  and  order  of  causes,  127 
Practice,  &c., 128 

CAPIAS  AD  SATISFACIENDUM : 

When  it  may  be  issued, 67 

When  it  may  be  issued  without 
an  order, 70 

When  an  order  of  arrest  is  neces- 
sary      71 

When   an  arrest  must  be  made 

before  judgment, 71 

Prerequisites  of  a  ca.  sa., 71 

How  defendant  may  be  dis- 
charged therefrom, 72 

Requisites  of  a  ca.  so., 72 

CASE: 

Preparation  of,  on  appeal, 125 

Printing  and  serving  the  same,.  125 

Where  return  of,  is  imperfect, ...  125 

Errors  in, 129 

CASE  AND  EXCEPTIONS: 
Case  defined, 166 


INDEX. 


Cask  AND  Exceptions  — Cont'd.  Page. 

Exceptions  defined 156 

The   practice   in  relation  to  the 

same, 156 

"When  a  case  should  be  prepared,  156 
When  exceptions  should  be  tak- 
en     157,  158 

When  case  should  be  made,  and 

how, 157 

Amendments,  . .    157 

Notice  of  settlement  of  case, .  157 

The  settlement  thereof, 158 

How  waived,  and  when  deemed 

settled,    158 

Filing  a  case,  and  the  effect  there- 
of,     158 

Resettlement  of  a  case,  ...,,...  159 

CERTIORARI : 

The  office  of  the  writ  of, 20,  230 

Jurisdiction  of  the  supreme  court 

therein,  230 

In  what  cases  the  proper  remedy,  230 

Legislative   action   not  thus   re- 
viewable,     230,  231 

The  granting  of  the  writ  is  in  the 

discretion  of  the  court, 231 

It  may  be  denied  when  the  right 

to  issue  is  unquestionable, ....   231 
When  issued  as  a  matter  of  course,  231 

Applying  for  the  writ, 231 

The  writ  and  its  requisites, 232 

To  whom  directed,    . , , 232 

Motion  to  quash  or  supersede,  . .   232 
Its  effect  staying  proceedings, . . .   233 

The  return  of  the  writ, 233 

What  to  be  returned  therewith, .   233 

234 
What  matters  may  be  disregard- 
ed,    234 

The  hearing 235 

How  determined, 235 

Judgment  therein 236 


COMMITTEE : 

In  case  of  idiots,  lunatics,  &c., , 
(See  Idiots  and  lunatics.) 


295 


CONTEMPTS : 

Punishment  of, 159 

The  inherent  power  of  the  court, 
&c. 159 


Contempts  — Continued.  Page. 

The  provisions  of  the  statute  in 

respect  thereto, 160 

Contempts,  how  punished, 160 

Distinct  from  proceedings  as  for 

contempts, 160 

Proceedings  as  for  contempts,  to 

enforce  civil  remedies, 161 

In  wliat  cases  will  lie, 161 

Against  whom,  &c., 161 

What  essential  to  justify  proceed- 
ings under  these  provisions,  . .    162 
What  must  be  the  nature  of  the 

misconduct 162 

Proceedings  for  non-payment  of 
costs,  &c.,  confined  to  attorneys, 

&c., 163 

So  punished  for  disobedience  to 
any   lawful    order,    decree   or 

process  of  the  court, 163 

Disobeying  an  injuuction, 164 

Disobeying  habeas  corpus, 164 

Endeavoring  to  defeat  the  pro- 
cess of  the  court, 164 

Suing  a  ward  of  the  court  with- 
out leave, 164 

The  manner  of  proceeding, 165 

What  notice  must  be  served  upon 

the  party, 166 

When  necessary  to  show  the 
original  order, 166 

Two  modes  of  commencing  these 
proceedings,   _. . 16t 

1.  By  attachment;  2.  By  order 
to  show  cause,  167 

The   attachment  and  what  to  be 

indorsed  thereon, 167,  168 

The  arrest  of  defendant, 168 

On  special  order,  &c., 168 

When  the  defendant  is  in  custody 

of  another,   169 

The  return  thereof, 169 

Proceedings  on  the  return,  169,  170 
Discharge  on  giving  bonds  to  ap- 
pear,    no 

The  prosecution  of  the  bond,  Ac,  170 
Order  to  show  cavLse  : 

The  usual  method 171 

Filing  of  interrogations,   171 

The  answer  of  defendant, 172 

What  on  failure  to  answer, 172 

Reference  may  bo  ordered, 172 

What  testimony  will  be  received,  173 


VI 


INDEX. 


OoNTEMrrs  —  Continued.  Page. 

What  the  court  must  determine, 

ou  tiiiduig, 173 

Defendant  guilty, 173 

The  fine,  its  amount,  &c., 173 

Suit  on  the  bond, 174 

COSTS: 
In  replevin  or  actions  to  recover 
the  possession  of  personal  pro- 
perty,    20,       9 

The   failing  party  to  pay  is  the 

rule, 400 

The  right  to  costs  is  statutory,. .  401 
In  equity  costs  were  in  the  dis- 
cretion of  the  court, 401 

Effect  of  the  enactment  of  the 

Code  thereon, 401 

What  parties  are  ordinarily  liable 

thereto, 402 

Suits  wliich  are  exceptions, 402 

Suits  by  poor  persons, 402 

Provisions  in  respect  thereto,...  402 
Trustees  of  an  express  trust, ....  404 

What  must  be  shown, 404 

Receiver  suing  a  claim  transfer- 
red,     404 

General  assignee  for  benefit  of 

creditors, 404 

An  executor  and  administrator,  .  404 
Power   to  grant  costs   in  these 
cases  is  in  the  discretion  of  the 

court, 405 

Against  executors,  &c., 405 

When  costs    may  be  given, 

405,  406,  407 
Wliat  must  be  made  to  appear, . .  407 

Municipal  corporations, 403 

Security  for  costs,  when  required,  408 

As  to  foreign  corporations, 409 

The  power  of  the  court  in  respect 

thereto,  409 

When  application  for,  to  be  made,  409 
Right  to  require  security  may  be 

waived,  409 

How  it  may  be  waived, 409,  410 

The  application  therefor, 410 

The  affidavit  showing  applicant's 
right,  &c., 410 

Proceedings  stayed  until  security 
is  given, 410 

Security  not  filed,  motion  to  dis- 
miss,  410 

Effect  of  an  order  to  show  cause,  410 


Costs  —  Continued.  Pag«. 

Security  in  the  form  of  a  bond, . .  410 

Excepting  to, 411 

Justification  of  sureties, 411 

Hearing  of  the  motion, 411 

When  attorney  liable 412 

Staying  proceedings  until  former 

costs  are  paid, 412 

When  the  stay  will  be  granted, 

412,  413 

When  it  will  not  be  granted, 414 

The  motion  for  such  stay, 414 

Wlien  a  party  not  of  record  li- 
able,   414 

What  to  be  established  under  the 

statute, 415 

When  a  defendant  is  not  liable,  .  416 
Parties  of  record  liable  for  costs 
though  they  have  assigned,  . .  417 

Liability,  how  ascertained, 417 

How  enforced, 417 

Liability  of  guardian  ad  litem, . . .  417 

Liability  of  a  relator, 418 

In  actions  by  the  people, 418 

Costs,  when  allowed,  of  course, .  419 
In  actions  as  to  real  property, ...  419 

As  to  personal  property, 420 

In  actions  for  the  recovery  of 
money, 421 

Several  plaintiffs  recover  but  one 

bill,    422 

When  and  how  defendants  are 

Uable, 422 

Effect  of  an  offer  or  tender,  <fec.,  422 

When  allowed  to  defendant, 424 

When  there  are  several  defend- 
ants,   424 

When  both  parties  are  allowed 
costs, 424 

Costs  in  the  discretion  of  the 
court, 425 

Rule  applicable,  &c. 425 

Where  the  party  is  found  in  the 
wrong, 426 

Where  the  suit  was  unnecessary,  425 

Rates  of  costs, 425,  426 

For  plaintiff, 425 

For  defendant, 426 

Additional  allowances  of  costs, .  428 
Allowance  in  difficult  and  extra- 
ordinary cases, 428 

Allowance,  how  computed, 429 


INDEX. 


VU 


CoBTB  —  Continued.  Page. 

Eft'ect  of  new  trial  on  allowance,  430 
Increased    costs   under   Revised 

Statutes, 430,  431 

Costs  on  appeal  to  general  term,  433 
Special  verdict  and  exceptions, . .  433 

Costs  in  court  of  appeals, 433 

Transfer  appeals 434 

Ta:xation  of  costs, 434 

Disbursements, 434 

Fees  of  referee,  . .    435 

Clerks'  fees, 435 

Sheriffs'  fees 436 

Jurors'  fees, 437 

Searches  and  copies, 437 

Witness  fees,   .    437 

Affidavits  of  attendance  and  of 

disbursements, 438 

Foreign  witnesses, 439 

Party  as  a  witness, ....  439 

Expenses  in  executing  a  commis- 
sion,   439 

Surveyors'  fees, 439 

Notice  of  taxation, 439 

Effect  of  omitting  notice, 440 

Power  and  duty  of  the  clerk,  &c.,  440 

Opposing  taxation, 440 

What  statutes  govern  the  taxa- 
tion,   441 

Retaxation, 441 

Interlocutory  costs, 442 

How  taxed, 442 

How  collected,  442 

Costs  on  postponement  of  trial,  .  443 

Motions,    443 

Costs  of  owners  in  special  pro- 
ceedings, and  surrogate's  court,  443 
Costs  on  settlement,    444 

CREDITOR'S  BILL: 

When  resorted  to  instead  of  pro- 
ceedings supplementary  to  exe- 
cution,    88,     89 

D. 

DEBTOR: 

When  he  may  be  arrested  in  pro- 
ceedings supplementary  to  exe- 
cution,       86 

His  examination  before  the 
judge, 86,     93 

n— 59 


DEATH:  Page. 

Proceedings     to     discover     the 

death  of  certain  persons, 349 

Who  may  institute  such  proceed- 
ings,    349 

How  often  they  may  be  insti- 
tuted,   , 349 

The  petition  in  such  case, 349 

What  it  must  set  forth, 349 

The  order  of  the  court  thereon, .  350 

Reference  ordered, 350 

Examination  of  witnesses, 350 

When  habeas  corpus  may  issue, .   350 

How  executed  and  returned, 350 

Return  of  referee, 351 

Proceedings  where  the  person  to 
be  produced  resides  beyond  the 

jurisdiction  of  the  court, 351 

Appointment      of      commission 

abroad,    352 

Notice  to  be  served,    352 

The  return  and  the  effect  thereof,  352 
Other  proof  that  such  person  is 

living 352 

Evidence  in  such  cases 352 

Costs, 352 

Restoration  of  the  estate 353 

DEPOSIT: 

In  lieu  of  undertaking 124 

DECREE: 
Judgment  in  the  nature  of,  ...  6,     7 
When   the  decree  may  embrace 
more  than  is  demanded, 8 

DEFENDANTS: 

Judgment  against  one  of  seve- 
ral,     1,  2,       4 

Judgment  where  one  makes  de- 
fault and  others  appear, 2 

When  some  only  are  sued  on  a 
joint  and  several  contract 3 

Nonjoinder  of,  how  taken  advan- 
tage of, 2 

In  actions  for  torts,  2 

When  to  be  discharged  for  want 
of  evidence,  &c.,  3 

Where  liability  is  only  joint, 
when  judgment  may  be  taken 
on  default, 3 

When  he  may  have  afiBrmative 
reUef, 4 


VIU 


INDEX. 


DsrENDANTS  —  Continued .  Page. 

What  he  must  do  to  entitle  him- 
self,         4 

The  authority  of  severing,  in  pro- 
nouncing judgment  belongs  to 
the  discretion  of  the  court,  ...       4 

Plaintiff  cannot  sever  defendants 
without  an  order,  Ac,    4 

Plaintifif  cannot  take  judgment  by 
default  against  one  of  several 
joint  defendants,  until  the  is- 
sues raised  by  others  of  them 
are  disposed  of, 5 

In  replevin,  when  entitled  to  judg- 
ment for  a  return  of  property, 
&c., 9 

DEVISEES: 

Execution  against,  <fec., 31 

Dormant  execution, 41,     44 

What  will  render  an  execution 
dormant,  45 

DOWER,  ADMEA.SUREMENT  OF: 
When  the  widow  may  apply  for,  276 

To  what  court, 276 

By  petition, 276 

Service  of  a  copy  of  petition  and 

notice  upon  heirs, 276 

How  served, 277 

The  appointment  of  guardians  of 

minor  heirs, 277 

These    proceedings     furnish    no 

evidence  of  title, 277 

But  only  of  the  location  and  ex- 
tent thereof, 277 

When  the  heirs  may  institute 
this    proceeding    against    the 

widow, 277,  278 

Proceedings  by  the  heirs, 278 

Order  of  admeasurement, 278 

The  appointment  of  commission- 
ers to  admeasure, 278 

The  oath  of  the  commissioners,.   279 
How  they  are  to  execute  their 

commission,    279 

Their  powers  and  duties,  . .   279,  280 
Time  for  making  their  report  may 

be  extended, 280 

Their  report,  how  to  be  made  and 
filed 280 

The  effect  of  such  admeasurement,  281 

When  ejectment  to  be  brought, . .  281 

Appeal  in  these  proceedings 282 

Papers  to  be  certified, 282 


DowEE,  ADMEASTTEEMTNT  OP— Cont'd.  Page. 
Proceedings  on   renewal  of  ad- 
measurement,  283 

Proceedings  on  affirmance, 283 

The  costs  in  these  proceedings, . .  283 

DRUXKARDS,  HABITUAL: 

Equity  of  redemption,  nature  of,  261 

Who  entitled  to  redeem, 261 

Notice    of   foreclosure    of,    how 

given,  and  its  requisites, 261 

Appointment    of   committeea  in 

case  of, 295 

(See  Idiots,  lunatics,  &c.) 


E. 

ESCAPE: 
From  the  jail  liberties,  what,. ...     76 
Action  against  sheriff  for,  Ac,  . .     77 
If  the  escape  be  voluntary  the 
sheriff  cannot  retake  without 

new  authority,  <fcc., 77 

To  make  sheriff  liable  for  an  in- 
voluntary escape,  what  is  neces- 
sary,      77 

EXECUTORS,  &C. : 
Execution  against,  Ac, . .  24,  28,     31 
Execution,  how  indorsed, ...  31,     32 

EXECUTIONS: 

The  several  kinds, 20 

When  an  execution  may  issue, . .     20 

WTien  an  alias  execution  may  be 
issued, 21 

When  and  for  what,  the  right  to 
issue  is  temporarily  suspended,     21 

Cannot  issue  against  the  body 
while  one  against  property  is 
unreturned,  and  vice  versa, .   21,  22 

Venue,  to  what  bounty  issued,  . .     22 

At  the  same  time  to  different 
counties, 22 

To  what  county  against  property 
prior  to  a  ca.  so., 22 

Why  to  issue  first  against  pro- 
perty,         22 

When  leave  to  issue  necessary, 

23,  24 

When  leave  should  not  be  grant- 
ed,      23 

When  an  ortier  from  the  surro- 
rogate  necessary, 24,  28 


INDEX. 


IX 


KxKCUTiONs— Continued  Page. 

How  obtaiued, 28 

When   leave   both  of  the   court 

and  surrogate  necessary, 25 

Eeference  may  be  had  on  applica- 
tion for  leave 25 

The  form  and  requisites  thereof, .     25 

An  execution  defined, 25,   26 

The  particular  form  thereof, . .   26,  27 

To  whom  directed 26,  29 

Directions  to  be  contained  there- 
in,         27 

Against  attached  property, 30 

How  executed, 30 

How  indorsed,   what  directions, 

31,  32 
Against  executors  or  administra- 
tors, what, 31 

Against  heirs  and  devisees,  what,  31 
On  judgment  for  penalty  of  bond,  31 
On  judgment  by  confession  for 

security,    32 

On  judgment  against  sheriff  and 

his  sureties, 32 

On  judgment  for  penalty  of  bond 
other  than  for  the  payment  of 
money, 32 

On  judgment  on  debt  secured  by 
mortgage, 32 

On  judgment  against  two  joint 

creditors, 33 

On  judgment  against  a  married 

woman,  33 

Indorsement  by  the  sheriff,  on 

the  receipt  of  it, . .  ^ ^,    33 

Judgment  on  which  it  is  issued 

must    be    docketed    in   such 

county, 33  , 

The  usual  mode  of  docketing,  &c.,  33 
Effect  of  lodging  the  execution  in 

the  hands  of  the  sheriff, 34 

The   order   of   preference   when 

there  are  several; 34 

"When  the  lien  commences, 34 

Upon  what  property  to  be  levied, 

34,  35,  36 
Property  exempted  therefrom,  36,  &c. 
Who  may  claim  the  privilege  of 

the  exemption ,     39 

Lien  of  the  execution, 40 

When   the    debtor's    goods    are 

bound  as  between  the  parties,     41 
When  lien  divested  in  favor  of 

bona  fide  purchaser, 41 


Executions  —  Continued. 

Becoming  dormant,  how,  and. 
when,    41 

Effect  of  a  levy  thereof,  and  the 

proceedings  thereon, 42 

When  one  levy  answers  for  two 

or  more  executions, 42 

Supersedeas,  of, 43 

What  constitutes  a  levy,  as  to, 

third  parties 43 

As  between  the  parties, 43,  44 

Formal  levy  upon  land  is  unne- 
cessary,       44 

Dormant  executions, 44 

What  will  render  dormant, 45 

Custody  of  property  after  levy, . .  45 

Liability  of  sheriff, 45,  46 

Sheriff  may  take  a  receipt  of  the 

property, 46 

May  be  left  with  defendant  at  the 

risk  of  the  sheriff, 46 

If  receipted,  he  must  look  to  the 

receiptor, 46 

Sherifl'  may  pay  the  execution 
and  repossess  himself  of  the 
property'  receipted, 46 

When  property  claimed  by  third 
person,  proceedings,  &c., 47 

When  execution  stayed  in  the 
hands  of  the  sheriff, 48 

When  he  is  bound  to  notice  an 

injunction,  &c., 48 

Sale  on  execution, 49 

What  notice  to  be  given,  in  case 

of  goods  and  chattels, 50 

How  given, 50 

Penalty  for  taking  down  notice, 

&c., 50 

Sale,  how  conducted, 50 

Not  obliged  to  sell  when  the  bid 
is  greatly  under  value, 50 

Must  exercise  a  just  and  sound 

discretion,  50 

If  he  cannot  obtain  a  rea.souablo 

price,  should  adjourn, 50 

Sale  must  be  at  public  vendue, . .     51 

Between  9  a.  m.  and  sunset 51 

In   such   lots   as  to  secure   the 

highest  price, 51 

Goods  must  be  sold,  not  delivered 

to  plaintiff  in  payments, 51 

Slieriff  cannot  sell  to  collect  his 

fees  merely, 51 


X 


INDEX. 


BxKCUTiONB  —  Continued.  Page. 

May  sell  aud  deliver  to  plaintiff 

without  payment, 51 

Priority  in  case  of  several  execu- 
tions,   '•••  52 

Latest  period  for  making  levy,. .  52 
How  to  apply  the  proceeds  upon 

the  executions, 52 

Against    partnership    members, 

precedence,  &c., 53 

In  case  of  contest,  sheriff  should 

bring  the  money  into  court,  &c.,  53 
What  interest  in  real  estate  may 

be  sold  thereon 20,  53,  54 

What  may  not  be, 54 

Sale  of  real  property, 54 

What  notice  to  be  published, ...  54 

How  published, 54 

Must  sell  on  execution  advertised,  56 
Must  sell  no  more  than  is  neces- 
sary,    56 

When  to  be  sold, 56 

Certificate  of  sale,' 56 

What  it  must  contain, 57 

Effect  of  sale, 57 

Application  of  the  proceeds, ....  58 
Surplus  in  his  hands  is  subject  to 

the  control  of  the  court, 58 

Judgment  liens  transferred  to  the  • 

surplus, 58 

Grantee  of  debtor  when  entitled,  58 

Right  of  redemption, 58 

By  whom  the  right  may  be  exer- 
cised,     59,  60 

How  a  creditor  acquiring  the  title 
of  the  original  owner  may  be 

defeated 60 

A  sale   extinguishes   the  junior 

judgment  lien, 60 

The  mode  of  acquiring  title  by 

redeeming,    61 

What   must  be   paid,  and   what 

done  generally, 62 

Effect  of  that  payment, 62 

What  affidavit  must  state, 62 

Where  payments  to  be  made, ...  G3 

To  whom  made, 63 

When  to  be  made, 63,  64 

Redemption   by   debtor  restores 

liens  of  junior  judgments,. ...  64 
How  time  for  redemption  is  com- 
puted,     65 

Time  may  be  extended  by  agree- 
ment,    65 


Executions  —  Continued.  Page. 

The  redeeming  creditor  takes  the 

place  of  the  purchaser, 65 

On  redemption,  the  certificate  of 

sale  becomes  void, 6G 

Sheriff's  deed  relates  back  to  the 

time  of  sale, 66 

Deed  of  sheriff, 66 

Its  requisites, 67 

For  the  delivery  of  possession  of 
real  or  personal  property,  ....     67 

How  enforced, 67 

Against  the  body  of  the  defend- 
ant,       67 

When  it  may  be  issued, . .   67,  et  seq. 

Tlie  order  for  an  arrest, 69 

When  execution  may  issue 
against  the  person  without  an 
order  of  arrest, 70 

When  such  order  is  necessary, . .  71 
When  arrest  must  be  made  before 

judgment, 75 

Cases  of  arrest  under  the  statute,  71 
Prerequisites    of     an    execution 

against  the  person,' 71 

Requisites  thereof, 72 

How  defendant,  being  arrested, 

may  be  discharged, 72 

Committing  defendant, 72 

Jail  liberties, 73 

Wlio  entitled  to  the  liberties, ....  73 

Bond  for,  its  conditions, 73 

Liberties,  how  defined, 74 

How  recorded  and  published,  74,  75 
Who  not  entitled  to  the  jail  liber- 
ties,    75 

Wliat  amounts  to  an  escape, ....  76 
When  debtor  leaves  the  limits  by 
the  consent  of  the  creditor,  the 
escape  is  excused  and  debt  dis- 
charged,     77 

Voluntary  escape, 77 

Sheriff  cannot  retake,  &c., 77 

Yoluntary  return  to  custody,  ...  73 
Creditor  may  take  an  assignment 
of  the  bond  for  the  limits  when 
the  debtor   has   violated    the 

condition, 78 

Discharge   under    the    insolvent 

laws, 79 

Mode  of  proceeding  thereon, ....  SO 

The  petition  of  the  insolvent,  ...  80 

Publication  of  notice  of  order,  &c.,  80 


INDEX. 


XI 


90 


Executions  — Continued.  Page. 

Opposing  creditor  may  demand  a 
jury, 81 

Discharge  from  imprisonment,  . .     81 

When  and  for  what  the  discharge 
will  be  void, 81 

When  the  execution  is  returnable,     8  2 

The  return  must  state  the  facts, .     83 

May  be  amended  by  leave  of 
court, 83 

Manner  of  compelling  a  return, . .     84. 

When  the  judgment  is  in  the  na- 
ture of  a  decree, 84 

Proceedings    supplementary    to, 

&c., 85 

(See  Proceedings  supplementary  to 
execution.) 

Must  have  been  returned  before 
commencing  proceedings  sup- 
plementary to  executions, ....     90 

Except  under  the  2d  part  of  § 
292  of  the  Code, 90 

May  be  returned  within  the  sixty 
days, 


F. 


FACT,  QUESTIONS  OF: 

Not  reviewable  in  the  court  of 
appeals, 112 

The  final  determination   of,    be- 
longs to  the  supreme  court, ...    112 

FACT,  ERRORS  OF: 

How  reviewed, 114 

How,  without  an  appeal,  ..   114,  115 

FORECLOSURE  OF  MORTGAGES 
BY  ADVERTISEMENT. 
(See  Mortgages^  forchsure  o/,)  ...   259 


H. 

HABEAS  CORPUS  AND  CERTI- 
ORARI: 
Tlie  nature  and  object  of  the  writ,  206 

Who  are  entitled  thereto 206 

Who  are  not 206 

For  what  purpose  it  is  issued, . . .   207 
Will  not  lie  to   review  a  judg- 
ment or  decision  of  a  court  or 


Habeas  Corpus  —  Continued.             Page, 
officer  having  competent  juris- 
diction,      207 

Not  the  proper  writ  to  try  the 
right  to  the  guardianship  of  an 

infant, 207 

The  application  for  the  writ, 208 

To  whom  and  how  made 208 

What  is  requisite  when  the  ap- 
plication is  to  an  officer  resid- 
ing out  of  the  county, 208 

In  what  cases,  &c.,  application 
must  be  in  the  county  where 

the  prisoner  is  detained, 208 

What  the  petition  must  contain, .   209 
Form  of  the  writ,  to  whom  di- 
rected,    209 

When  copy  of  papers,  &c.,  must 

be  annexed, 210 

The  application  must  be  to  the 

supreme  court,  when, 210 

To  determine  the  rightful  custody 

of  the  infant 210 

Writ,  to  be  under  the  seal  of  the 

court, 210 

The  indorsement  thereon, 211 

How  and  by  whom  the  writ  to  be 

served, 212 

Proceedings  in  case  of  disobedi- 
ence   213 

The  return  of  the  writ, 214 

Proceedings  after  such  return,..  215 
When  the  prisoner  is  in  custody 
on  civil  process,  &c.,  when  and 
how  he  may  be  discharged, . . .  217 
The  examination,  and  duty  of  of- 
ficers, &c., 217 

HABEAS  CORPUS,  &c.: 

What  may  be  inquired   into  on 

the  return  of  the  writ,. .   218,  219 
He  may  impeach  the  legality  of 

his  imprisonment, 218 

Diverse  ways,  &c., 218,  219 

Construction  of  the  stat\ite  au- 
thorizing the  prisoner  to  deny 
any  material  facts  alleged,  &c.,  219 

Evidence  on  such  hearing, 220 

How  far  decision  is  conclusive, . .   220 
Penalty  for  concealing  a  prisoner 
with  intent  to  elude  service  of 

the  writ, 221 

Proceedings  in  respect  to  infants,  222 
Statutory  provisions  in   respect 
thereto,  223 


xu 


INDEX. 


Habeas  Corpus,  &c.— Continued.        Page. 

By  what  the  courts  are  governed 
in  determining  the  custody  of 
infants, 224 

"When  the  writ  should  be  certio- 
rari,     225 

Persons  discharged  not  liable  to 
re-arrest  for  same  cause,  ....   225 

What  not  deemed  to  be  same 
cause,    226 

Appeal,  (fee, 228 

HABEAS  CORPUS   AD    TESTI- 
FICANDUM,    229 

HEIRS: 

Of  a  person  dying  intestate,  must 
be  sued  jointly,  when  sued  for 
the  debts  of  the  intestate, 5 

Their  interests  are  several,  &c.,  .       5 

Court  may  decree  that  debt  be 
levied  of  the  lands  of  the  tes- 
tator, &c., 8 

Entitled  to  redeem  mortgaged 
premises, 261 

Must  have  notice  of  foreclosure, 

265,  266 

May  apply  to  have  dower  ad- 
measured,    278 

HEIRS  AND  DEVISEES: 

Execution  against,  <fec., 31 


I. 


IDIOTS,  LUNATICS  AND  HABITUAL 
DRUNKARDS: 
Proceedings  for  the  appointment 

of  a  committee  in  the  case  of, .   295 
Who  have  jurisdiction  in   such 

cases, 295 

Who  are  the  persons  contemplat- 
ed by  the  statute, 296 

Who  is  an  idiot, 296 

Who  is  lunatic, 296 

Who  a  person  of  unsound  mind,  296 
What  mind  held  to  be  sound  by 

the  law, 296 

Finding  of  a  jury  not  necessary 

to  determine  the  fact, 297 

Habitual  drunkard,  who  is, 297 

Application  for  a  committee 298 

How  made  and  by  whom, 298 


Idiots,  &c.—  Continued.  Page* 

Where  to  be  made, 299 

The  proceedings  thereon, 299 

The   making   and  entry  of    the 

order, 299 

Persons  not  to  deal  with  the  party 
after  the  issuing  of  the  commis- 
sion,    299 

The  return  of  the  commission  is 
a  judicial  determination 299 

Execution  of  the  commission, . . .  299 

The  proceedings  for  that  purpose,  300 

Precept  to  the  sheriff, 300 

The  manner  of  executing  the 
same, 300 

Notice  thereof, 300 

Duty  and  power  of  the  commis- 
sioners,   301 

The  inquisition, 301 

The  finding  must  be  in  the  lan- 
guage of  the  statute, 301 

The  usual    practice    in    respect 

thereto, 301,  302 

Petition  for  the  appointment  of 

the  committee 302 

Notice,  to  whom  given 302 

Selection  of  the  committee, 302 

What  considerations   to  govern 

therein, 302 

Wishes  of  lunatic  to  be  consulted,  302 
Care   of   married    persons,   how 
given, 302 

Reference  may  be  ordered  on  ap- 
pointing the  committee, 302 

When  the  appointment  is  contest- 
ed,    303 

Order  of  reference,  how  executed,  303 

Practice  thereunder, 303 

One  committee  for  the  person  and 
another  for  the  estate  may  be 

appointed, 303 

Of  the  effect  of  the  finding  of  an 

inquisition, 304 

Of  the  allowance  for  support, . . .  305 
What  principles  govern  therein, .   305 
Of  actions   by  and  against  luna- 
tics, &c., 306 

After  the  appointment  of  a  com- 
mittee,   307 

Of  traversing  the  inquisition, . . .   308 

Who  may  apply  for  leave, 308 

Notice  of  the  application, 308 

The  order  allowing  the  same, ....  309 


INDEX. 


XUl 


Idiots  ,  &o  —  Continued.  Page 

Cost  of  such  traverse, 309 

Bond  by  the  committee  and  sure- 
ties,    309 

To  whom  made,  and  the  condition 

thereof, 309 

Power,  duties,  liability,  compen- 
sation, &c.,  of  the  committee,.   310 
The  estate  of  the  committee, ...  311 
What  determines  the  authority  of 

the  committee, 311 

Committee  to  make  and  file  an  in- 
ventory,    311 

The  same  to  be  repeated  annually,  311 
Compensation  of  the  committee, .  312 
Proceedings  to  lease,  mortgage  or 

sell, 312 

Proceedings  under  the  Revised 

Statutes, 313 

The  application,  how  made, 314 

The  matter  will  be  referred, ....  314 

Duty  of  the  referee, 314 

Proceedings  under  such  reference,  315 
Proceedings  under  the  act  of  1864,  315 

Removal  of  the  committee, 316 

For  what  cause, 316 

The  appUcation  for  removal, ....  316 
Setting  aside  the  inquisition, ....  317 

The  application,  how  made, 317 

Suspending  the  inquisition, 317 

Power  of  the  court, 317 

Discharging  the  commission, ....  317 

For  what  causes, 318 

The  matters  of  evidence,  &c., . . .  318 

IlfFANTS: 

Special  proceeding  by  and  against,  319 

The  appointment  of  guardian, . . ,  319 

By  whom  made, 319 

The  power  of  the  court  in  respect 
thereto,   319 

The  mode  of  appointing  a  guar- 
dian,    319 

To  whom  this  guardianship  be- 
longs,    320 

Proceedings  to  appoint  a  general 
guardian, 320 

The  petition,  and  where  presented,  320 

The  proceeding  of  the  court 
thereon, 320 

Their  method  of  determining  facts, 
&c.,    321 

Referee  may  be  appointed, 321 


Infants  —  Continued.  Page. 

His  duty  and  his  report, 321 

Not  required  to  give  notice,  &c., .   321 
When   his   report   will   be   con- 
firmed,    321 

When  the  appointment  of  general 

guardian  becomes  complete,  . .   321 
The  security  to  be  given,  what, .   32 1 
Powers  and  duties  of  the  general 
guardian, 322 

What  acts  binding  on  their  wards,  322 
What  void  and  what  voidable, 

322,  323 
Must  keep  his  own  funds  sepa- 
rate,     323 

Must  invest  within  a  reasonable 

time,    323 

Must  make  suitable  provision,  &c.,  323 
Must  not  draw  from  the  princi- 
pal, &c., 323 

Must  make  inventory  of  personal 

estate, 324 

May  be  called  to  account  at  any 

time,    324 

Proceedings  for  sale,  mortgage  or 
lease,  &c.,  of  infants'  real  es- 
tate,    324 

Jurisdiction  in  such  cases, 324 

Proceeding  is  by  petition, 324 

Appointment  of  special  guardians 

for  such  proceedings, 325 

The  petition  and  its  requisites, . .  325 

Who  should  join, 325 

The  appointment,  &c., 325 

The  rule  of  the  court  thereon,  . .  326 
Provision  of  the  statute  respect- 
ing same, 326 

Bond  and  sureties  in  such  cases,  327 
Reference  under  the  rule  of  court,  327 
Guardian   to   produce  certificate 
of  clerk,  Sec,  before  referee  to 
proceed,    327 

Substance  of  such  certificate, . . .  327 

Proceedings  by  the  referee, 327  • 

His  report, 327 

Guardians'  contracts  of  sale  to  be 

in  writing, 327 

Cannot  execute  same  until  he  has 
made  his  report,  and  it  is  ap- 
proved, &c., 323 

His  report,  how  made, 328 

The  order  of  the  court  thereon, .   328 
Dower  in  such  cases, 328 


XIV 


INDEX. 


Imfants  — Continued.  Page. 

Fiual  report  of  guardian, 328 

Proceedings  to  obtain  specific  per- 
formance, by  infant  lieir,  of  the 

contract  of  ancestor, 329 

By  petition  only 329 

What  court  has  jurisdiction, 330 

When  a  specific  performance  will 

be  compelled, 330 

The  principle  governing  in  such 

case, 330 

Court  will  exercise  a  judicial  dis- 
cretion in  such  cases, 330 

By  whom  petition  to  be  filed,  ...   331 
What    the    petition    should   set 

forth, 331 

The  presentation  and  hearing  of 

the  same, 332 

Where  the  petition  is  to  be  pre- 
sented,   332 

Proceedings  to  compel  an  infant 
trustee  or  mortgagee  to  con- 
vey,    332 

Proceeding  by  petition 333 

By  whom  filed, 333 

What  the  petition  must  state, . . .  333 
When  a  guardian  ad  litem  must 

be  appointed, 333 

(See  Habeas  corpus ;  Partition.) 

INQUISITION: 
In  case  of  idiots,  lunatics,  &c.,  . .  301 

INSOLVENT  LAW : 

Discha/rge  thereunder, 79 

IRREGULARITIES: 
What  will  vitiate  a  judgment, ...     14 
What  will  not  vitiate,  Ac, 15 


J. 

JAIL  LIBERTIES: 

What  they  are, 73 

Who  is  entitled  to  the  liberties, . .  73 

Bond  for,  and  its  requisites, 73 

Liberties,   how  ascertained  and 

defined, 74 

How  published, 74,  75 

Who  not  entitled  to, 75 

What  constitutes  a  breach  of  the 

bond,  for, 76 


Jael  liberties  —  Continued.  Page. 

What  escape  from,  renders  the 
sheriff  liable 76 

JUDGE : 

Of  supreme  court,  in  proceedings 
supplementary    to    execution, 

his  jurisdiction, 86 

The  authority  of,  personal, . .   87,    93 
Except  in  1st  judicial  district, ...     87 
In  what  case  he  has  no  jurisdic- 
tion,  88,     93 

What  gives  him  jurisdiction,  Ac,     88 

County  judge,  when  authorized  to 
take  cognizance  of  these  pro- 
ceedings,       88 

JUDGMENTS  IN  SPECIAL  CASES: 

For  and  against  one  or  more  par- 
ties,         1 

When  a  second  judgment  may  be 
rendered, I 

When  the  contract  is  on  its  face 
joint,  but  in  fact  several, 1 

When  a  separate  judgment 
against  husband  and  wife  can- 
not be  given, 3 

When  reversed,  the  cause  will 
not  be  dismissed  when  some  of 
the  defendants  are  liable,  ....       3 

Wlien  it  has  the  substance  and 
scope  of  a  decree, 4 

A  several  judgment  cannot  be 
pronounced  against  a  defend- 
ant only  jointly  liable, 5 

How  to  be  pronounced,  in  case 
the  cause  of  action  is  only 
joint, 5 

Against  executors, 6 

Must  be  special, 6 

For  equitable  relief,  or  decree,  . .       6 

Jn  actions  for  the  recovery  of 
personal  property, 8 

When  the  plaintiff  is  already  in 
posssession, 8 

When  must  be  in  the  alternative,       8 

For  defendant  must  be  in  alter- 
native,         9 

When  complaint  is  dismissed  for 
defect  of  evidence, 9 

In  actions  for  the  recovery  of 
real  property, 9 

What  it  must  contain, 10 

When  the  rights  of  the  plaintiff 
cease  during  the  pendency  of 
the  action, 10 


INDEX. 


XV 


JOBOMENTS— Continued.      •                 Page. 
In  actions  in  the  nature  of  waste,     10 
In  actions  in  the  nature  of  nui- 
sance,      10 

Against  corporations, 10 

Amendments  of, 11 

Motion  to  set  aside  judgments, 

when  made, 16 

Who  can  make  the  motion, 16 

When  motion  to  set  aside  judg- 
ment in  case  of  publication  of 

notice  to  be  made, 17 

Satisfaction  of  judgment, 17 

How  canceled  and  discharged  by 

the  clerk, 17 

When  satisfied  by  the  satisfaction 

of  the  execution, 18 

When  not, 18 

Of  a  justice  of  the  peace,  when  a 
judgment  of  the  county  court, .     26 

Appeal  from, Ill 

On  appeal 116 

Prom  what  an  appeal  lies, 118 

Must  be  final, 118 

When  final 118 

Must  be  actual  and  not  formal 

merely, 118 

When  it  directs  the  sale  of  perish- 
able property,  what  on  appeal,  122 

JURY: 

Sheriff's  jury,  to  try  title  to  pro- 
perty,       47 

In  case  of  proceedings   against 
idiots,  &c., 300 


L. 

LEVY: 

Of  an  execution  upon  personalty, 
how  far  a  satisfaction  of  the 

judgment, 18 

How  far  not, 18 

Upon  land,  effect  of, 18 

Effect  of  a  levy  and  the  proceed- 
ing thereunder, 42 

One  levy  may  answer  for  two  or 

more  executions 42 

What  constitutes  a  levy  as  to 

third  parties, 43 

What  as  between  the  parties,  43,     44 
Formal  levy  upon  land  unneces- 
sary,         44 

U— 60 


Lett  — Continued.  Page- 

Custody  of  property  after  levy, . .     45 
Latest  period  for  making  a  levy, .     52 

LIEN: 

Of  execution  upon  property,  ....     40 

Priority  of,  in  case  of  several  exe- 
cutions,       52 

Extinguished  by  sale  ou  senior 
judgment,  &c., 60 

Redemption  by  debtor  restores 
the  liens, 64 

None  created  by  granting  an  or- 
der in  supplementary  proceed-  " 
ings, 94 

But  will  relate  back  on  the  ap- 
pointment of  a  receiver, 94 

Of  mechanics,  general  laws  of,  &o.,  284 
(See  Mechanics'  general  lien  laws.) 

LUNATIC : 

Proceedings  in  case  of,  &c., 295 

(See  Idiots,  lunatics,  &c.) 


M. 

MANDAMUS  AND  PROHIBITION : 
General  observations  in  respect 

thereto, 183 

In  what  cases  it  will  not  be  is- 
sued,    183 

Against  whom  and  when  it  will 

issue, 184 

Against  inferior  courts, 185 

What  it  will  and  what  it  will  not 

require,   185 

The  mandate  of  the  writ  when 

directed  to  judicial  officers, . . .  185 
Will  not  issue  to  control  the  dis- 
cretion, &c., 185 

Affainst  corporations, 186 

In  what  cases  it  lies  against  them,  186 
Against  officers,  ministerial,  &c., .   187 
Against  supervisors  of  the  county,  187 
Against  commissioners  of  high- 
ways,    188 

Against  overseers  of  the  poor, . .   188 

When  allowable  generally, 188 

For  restoring  an  individual  to  an 

office, 189 

Against  private  persons  and  offi- 
cers of  corporations, 190 


XVI 


INDEX. 


Makdamus  — Continued.  Page. 

The  writ  aad    the    proceedings 

thereou, 190 

The  appUcatioa  therefor, 191 

The  affidavit, 191 

It  should  not  be  entitled, 191 

The  order  granting  the  writ, ....  193 

Alternative  mandamus, 193 

The  nature  thereof, 194 

What  it  must  set  forth, 194 

To  whom  directed, 195 

How  served, 196 

When  it  may  be  amended, 196 

Motion  to  quash,  &c., . . . , 196 

Proceedings  when  the  defendant 

fails  to  make  return, 197 

The  attachment  in  such  cases,  . .  197 

The  return  of  the  mandamus, . . .  198 

What  the  return  should  show, . .  198 

What  it  may  contain, 198 

The  pleadings  in  mandamus,  199,  200 

The  practice  therein,  <fec.,  . .   199,  200 

Plea  and  demurrer, 200 

Issues  and  findings  thereon, ....  201 

Finding  and  judgment, 202 

Costs,  &c., 202 

Enforcement  of  writ, 202 

Appeal, 203 

Prohibition : 

The  nature  and  object  of  the  writ, 

20.3,  204 

Caa  be  issued  only  by  the  su- 
preme court, 204 

To  whom  directed, 204 

How  served, 204 

The  notice  and  its  service  upon 
the  relator, 204 

Judgment,  &c., 205 

MARRIED  WOMAN: 

Execution  on  judgment  against, .     33 
May  confer  on  a  mortgagee  power 
to  sell,  &c., 267 

MECHANICS'  GENERAL  LIEN  LAW: 
In  what  cases,  and  how  the  lien 

is  created, 284 

Where  the  lien  attaches, 285 

The  meaning  of  the  word  "own- 
er" within  the  statute 285 

The  right  to  acquire  a  lien  does 
not  extend  to  an  assignee 285 


Mechanics''  leen  law  —  Continued.  Page. 
When  the  labor,  &c.,  is  furnished 

on  the  credit  of  the  contractor,  286 

Lien,  how  created, 286 

The  notice  and  its  requisites, ....  286 
Its  entry  in  the  lien  docket, ....  286 

Within  what  time  to  be  filed, 287 

Statute  must  be  strictly  followed,  287 

Continuance  of  the  lien, 287 

How  it  may  be  discharged, 287 

Where  and  how  enforced, 288 

The  parties  thereto, 288 

Proceedings  in  justice's  court, . . ,  288 

Action,  how  commenced, 289 

A  bill  of  particulars,  &c.,  to  be 

filed, 289 

Notice  and  bill  may  be  personally 

served    anywhere  within   the 

state,  289 

Or  by  leaving  a  copy,  &c.,  when 
owner  cannot  be  found  or  is 

not  in  the  state, 289 

Proceedings  in  such  case,  Ac, . . .  289 
Proceedings  where    the    owner 
does  not  appear, 289 

Proceedings  where  he  does  ap- 
pear,    290 

Action,  how  commenced  in  su- 
preme court, 290 

When  to  be  brought  there, 290 

Notice,  how  to  be  served, 290 

New  party,  how  brought  in,. . . .  291 

Proceedings  in  case  of  default,. .  291 
Requisites  where   service  is  by 

publication, 291 

The  appearance  of  the  defendant,  291 

The  issue,  how  formed, 292 

Proceedings  after  issue, 292 

Judgment, 293 

Execution, 294 

Costs  and  disbursements, 294 

Appeal,  294 

MORTGAGE • 

Who  may  execute  with  power  of 

sale, 259 

Wlio  may  foreclose  the  same, . . .  260 
Payment    of,    extinguishes    the 
power  of  sale, 270 

MORTGAGE,  FORECLOSURE  OF,  &c. : 
Foreclosure  of,  by  advertisement,  258 


INDEX. 


XVU 


MoBTOAOE,  &c.  —  Continued.  Page. 
Not  a  remedy  in  a  court  of  jus- 
tice,     258 

Strictly  a  statutory  remedy, 258 

Provisions  of  the  statute,   259 

Authority  to  sell,  &c.,  is  a  matter 

of  contract, 259 

Who  may  execute  such  mortgage 
and  power, 259 

The  power  of  sale  applies  solely 

to  the  remedy, 260 

Such  power  of  sale  passes  by  as- 
signment, &c., 260 

Who  to  foreclose  such  mortgage,  260 

Who  to  join  in  the  same, 260 

Necessary  prerequisites  to  such 
foreclosure, 260 

Nature  of  the  equity  sought  to 

be  foreclosed, 261 

It  is  equal  to  an  estate  in  fee, . . .   261 
The  holder  thereof  may  redeem, .   261 

And  must  be  notified, 261 

Notice  of  foreclosure,  how  given,  261 

What  each  must  specify, 262 

Essential  requisites  of, 263 

Length  of  such  notice 263 

Where  to  be  pubHshed, 264 

Upon  whom  to  be  served, 265 

How  served, 267 

When  service  may  be  dispensed 

with, 267 

How,  where  service  is  by  mailing,  267 
Postponement  of  sale,  how  made,  268 

The  sale,  &c., 268 

Not  a  judicial  sale, 269 

Valid  though  made  on  Sunday,  .   269 
Premises   consisting   of    distinct 
farms,  &c.,  to  be  sold  separate- 
ly,      269 

Divisions  made  subsequent  to  the 

mortgage  not  included, 269 

Efifect  of  selling  for  only  what  is 
due  at  the  time  of  the  sale, . . .   269 

The  proper  mode  of  selling, 270 

Power  to  sell  is  extinguished  by 

payment  of  the  mortgage, ....   270 
Surplus  money  arising  from  the 

sale,  how  disposed  of, 271 

Effect  of  such  sale, 271 

Effect  of   a  statute   foreclosure 

and  sale, 272 

Sale  void  as  to  persons  in  adverse 
interest  who  are  not  notified,.   272 


MoBTOAGE,  &c.  — Continued.  Page. 

The  affidavit  of  sale, 273 

Substitute  for  a  deed, 273,  274 

By  whom  taken  and  certified, ...  273 
Must  be  recorded  at  length  by 

the  clerk  of,  &c., 273 

What  the  affidavit  must  state, . . .  274. 

Costs  in  these  proceedings, 275 


NOTICE : 
Of  appeal: 
Must  be  given  within  the  time 

allowed, 115 

May  be  served  by  mail, 116 

But  should  be  personal  upon  the 

clerk 116 

Not  an  original  process, 116 

Of  foreclosure, 261 

How  to  be  given, 261 

What  it  must  specify, 262 

The  necessary  prerequisites,  there- 
of,   263 

Length  of  time  to  be  pubUshed, .  263 

Upon  whom  to  be  served, . .   264,  266 

When  to  be  published, 264 

How  to  be  served, 267 


o. 

ORDER : 

To  sliow  cause : 

Personal  representatives  sum- 
moned where  there  is  judgment 
against  the  testator  or  intes- 
tate, who  has   died   since   its 

rendition,    28 

Within  what  time  to  be  sum- 
moned,     28 

For  an  examination  in  supplement- 
ary proceedings,  90,     92 

Service  of  such  order 94 

The  order,  how  applied  for, 91 

Disobedience  thereof,  how  pun- 
ished,       94 

The  examination  thereunder,  ...     95 

The  time  and  place  thereof, 95 

How  enforced  in  these  proceed- 
ings,    108 

From  what,  an  appeal  will  lie, 

111,  112 


XVIU 


INDEX. 


Order  —  Conti  nued  Page. 
From  wliat,  no  appeal  will  lie,  . .   113 
Stay  on   appeal   from,    how  ob- 
tained,    122 

(See  Mandamus.) 


P. 

PARTITION: 
la  what  case   partition  may  be 
had, 353 

Proceedings  are  to  be  by  action, .  353 
Proceedings  by  petition  not  ad- 
visable,   353 

What  courts  have  jurisdiction,  . .  354 
Plaintiff  in  petition  to  be  of  full 

age, 354 

What  must  be  the  plaintiff's  title,  354 
In  respect  to  what  estate, . .  354,  355 
Possession  may  be  actual  or  con- 
structive,    355 

Commencement  of  the  action, . . .  355 

Parties  thereto, 355 

In  case  of  an  infant,  what  pro- 
ceedings,     355,  356 

The  petition  of  the  infant  appli- 
cant,    356 

The  proceedings  thereon, 356 

Where  parties  interested  are  un- 
known,      357 

Where  lands  are  held  by  the 
state  and  an  individual  as  ten- 
ant in  common, 351 

Idiots,  &c.,  to  be  made  parties,  . .  357 
Judgment  creditors  and  mortga- 
gees,      358 

The  action,  how  commenced, ....  358 

The  pleadings  therein, 358 

Appointment  of  guardian  ad  litem 

for  infant  defendants, 358 

Where  the  infant  resides  out  of 

the  state, 359 

Within  what  time  to  apply  for 
appointment    of    guardian    ad 

litem, 359 

Plaintifif  must  wait  after  serving 

summons, 359 

Notice  to  be  given  where  the  in- 
fant is  under  fourteen, 360 

The  length  of  such  notice, 360 

The  appointment  of  special  guar- 
dian, how  made, 361 

What  the  petition  should  specify,  361 


Partition  — ■  Continued.                      Page. 
The  order  appointing  such  guar- 
dian,       361 

What  it  must  specify 361 

The  act  of  1852  in  this  respect,.   362 

Its  application, 362 

The  answer  and  other  pleadings,  363 
Any  party  appearing  may  plead 

separately, 363 

Default  of  defendant, 364 

When  a  part  answer  only,  how, .   364 

Where  none  appear, 364 

What  necessary  to  entitle  plain- 
tiff to  judgment, 364 

Reference,  when  ordered, 3&5 

What  it  directs,  365 

When    premises    cannot  be   di- 
vided  365 

What  must    be   found  and   re- 
turned,    365,  366 

Proceedings  upon  reference,  how 

governed, 366 

Report  of  referee,  what  to  con- 
tain   366,  367 

The  hearing  thereupon, 367 

Judgment  or  order  for  partition, .  367 
Appointment  of  commissioner  to 

execute,  &c., 369 

Their  powers  and  duties, 369 

Prerequisites  to  the  execution  of 

their  office, 370 

Proceedings  in  the  discharge  of 

their  duties, 370 

Must  notify  all  parties  interested,  370 
Where   there    is    an    estate    in 

dower,  or  by  the  courtesy,  ...   371 
Limit  of  the  powers  of  the  com- 
mission,     371 

They  are   to  execute  the  judg- 
ment of  the   court  upon   the 

premises, 371 

They  have  authority  to  examine 

witnesses, 372 

How  they  must  perform  their  du- 
ties,     372 

What  their  report  must  show,  . .   372 
Effect  of  setting  aside  their  re- 
port,    373 

Final  judgment  upon  actual  par- 
tition,    373 

Who  bound  thereby, 373 

Effect  of  the  act  of  1847, 374 

What  this  judgment  should  spe- 
cify,    374 


INDEX. 


XIZ 


Partition  — Continaed.  Page. 

Report  that  the  land  cannot  be 

partitioned 375 

When  such  report  to  be  made, . .   375 

Order  of  the  court  thereon, 375 

Proceedings  in  respect  there- 
to  375,  376 

Further  parties  may  then  be 
made, 376 

Further  reference  to  be  had, ....   376 

Notice  to  be  published, 376 

Order  of  sale  and  proceedings,  . .  377 

Where  there  are  incumbrances 
upon  tlie  estate  affecting  any 

of  the  parties 377 

Proeeedings    in    respect  to   the 

same, 377 

The  application  to  the  court, ....  377 

What  must  accompany  it, 377 

What  notice  to  be  given, 377 

Hearing  of  the  application, 377 

Order  thereupon, 377 

Canceling  of  such  incumbrance,  .  377 

Order  of  sale  by  the  commission- 
ers,    387 

What  it  should  embrace, 378 

Proceedings  of  the  commissioners 

under  such  order, 378 

Notice  of  sale  to  be  given, 378 

Sale,  how  conducted, 378 

Report  of  sale, 379 

Conveyance  of  the  premises, ....  379 

Effect  of  such  conveyance, 379 

Costs  to  be  deducted, 379 

Disposition  of  the  proceeds, 380 

Where  any  of  the  known  parties 

are  infants, 380 

When  absent  or  unknown, 380 

Where  proceeds  belong  to  tenant 

in  dower,  &c., 380 

Investment  to  be  made, 380 

In  what  securities, 380 

In  whose  name  security  to  be 
taken, 380 

When  conveyances  to  be  exe- 
cuted,     380 

Proceedings  for  a  sale  by  a  ref- 
eree,     381 

Referee  takes  the  place  of  the 
master, 381 

Proceedings  under  the  79th  rule,  381 

An  additional  order  to  be  made,  382 


Partition  —  Continued.  Page* 

Question  for  the  consideration  of 

the  referee, 382 

Duty  of  the  referee, 382 

When  a  reference  might  be  un- 

neoessary, 383 

Proceedings  under  the  reference, 

how  conducted, 384 

What  should  be  furnished  to  the 

referee, 384. 

Report  of  the  referee, 385 

On  the  death  of  a  party  new  par- 
ties to  be  brought  in, 385 

Judgment  for  sale  and  distribu- 
tion,     385 

Sale  by  the  referee, 386 

Notice  to  be  given  and  what, . . .   386 

The  manner  of  the  sale, 386 

Terms  thereof  to  be  made  known, 

386,  387 

Report  of  such  sale, 387 

Confirmation  of  such  sale, 388 

Executing  conveyances, 388 

Purchaser  declining  to  take  the 

title, 388 

Motion  to  compel  the  purchaser, .   388 

Rights  of  the  purchaser, 389 

Resale  may  be  directed, 389 

Appeal  in  these  cases 389 

PARTIES : 
Judgment  against  one  of  several,      4 
When  judgment  may  be  entered 
against  one  of  several, 2 

PARTNERSHIP : 
An    execution    against    all   the 
members    of    the    firm    takes 
precedence  over  one  against  an 
individual  member, 53 

PAYMENTS  : 

Of  a  judgment  is  a  satisfaction 

thereof,  &c.,    19 

When  between    certain    parties 

not,   19 

Of    mortgage    extinguishes    the 

power  to  sell, 270 

PERISHABLE  PROPERTY: 
Taken  in  execution,  how  disposed 
of,    122 

POSTPONEMENT : 
Of  the  sale  of   mortgaged  pre- 
mises,      2C8 


XX 


INDEX. 


FROCREDTNGS    SUPPLEMEXTARY 
TO  EXECUTION:  Page. 

"When  plaintifif  is  authorized  to 
institute  the  same, 85 

The  provisions  of  the  Code, 85 

Prehminary  affidavit,  and  what  it 
must  contain, 85 

Before  whom  instituted, 85,  86 

When  a  judge  of  the  supreme 
court  may  have  jurisdiction  in 
all  cases, 86 

"When  the  debtor  may  be  arrested 
in  these  proceedings, 86 

His  examination  before  such 
judge, 86 

Not  excused  from  answering 
questions  tending  to  criminate 
himself, 86 

The  authority  of  the  judge  is  per- 
sonal, and  does  not  extend  to 
the  court,  in  these  proceed- 
ings,    87,  93 

Except  as  to  the  first  judicial 
circuit, 87 

These  proceedings  not  identical 
with  chamber  business, 88 

County  judge  authorized  to  take 
cognizance  of  these  proceed- 
ings, when, 88 

In  what  cases  a  judge  of  the  su- 
preme court  has  no  jurisdic- 
tion,    88,  93 

What  gives  him  jurisdiction  in 
such  cases, 88 

The  nature  of  supplementary  pro- 
ceedings,       88 

When  a  substitute  for  the  old 
creditor's  bill,  what  their  spe- 
cial object 89 

Against  whom  and  in  what  cases 
these  proceedings  apply, 89 

Not  applicable  to  judgment 
against  corporations, 89 

Nor  to  a  foreign  consul  who  has 
permitted  judgment  by  default,     90 

What  must  appear  to  confer  ju- 
risdiction,       90 

The  execution  must  have  been 
returned  unsatisfied, 90 

Except  as  to  the  2d  part  of  §  292 
of  the  Code, 90 

The  execution  may  be  returned 
at  any  time  within  the  sixty 
days, 90 

Order  for  an  examination,  how  ap- 
plied for, 91 


Pboceedings  —  Continued.  Page. 

What  the  affidavit  must  allege, .     91 
The   rule   more   strict    before   a 

county  judge,  &c., 92 

Who  may  apply  for  such  order, .     92 
The  order  for  an  examination, ...     92 

When  a  warrant  may  be  issued 
for  the  arrest  of  the  debtor, . .     93 

No  lien  created  by  granting  the 
order, 94 

But  hen  will  relate  bank  on  the 
appointment  of  a  receiver, ....     94 

The  injunction  clause  of  the  or- 
der,      94 

Service  of  the  order, 94 

Disobedience  thereof  punishable 
as  for  contempt, 94 

When   objection  to  such    order 

may  be  taken, 94 

Formal  objections  waived  by  ap- 
pearance,    95 

The  examination, 95 

The  time  and  place  thereof,  ....  96 

Thp  appearance, 95 

Cannot  adjourn  without  consent, 

&c., 95 

Failure  to  appear,  Ac,  must  com- 
mence de  novo, 96 

Object  of  the  exanrination  of  the 

defendant, 96 

How  examined,  &c., 96 

When  a  reference  should  be  had,  97 

The  authority  of  the  referee,  ...  98 
When  his  power  is   at  an  end, 

&c.,    98 

The  referee  must  report  to  the 

judges, 98 

When  he  may  to  the  court, 99 

The  examination  of  a  third  party,  99 
The  nature  and  object  of  such  an 

examination, 99 

How  obtained, 99 

The  affidavit  in  such  cases 100 

When  the  examination   may  be 

ordered  to  take  place, 100 

To  what  cases  these  proceedings 

not  applicable, 100 

Examination  of  witnesses,  &c.,  .  102 
What  property  may  be  reached 

under  these  proceedings, 103 

The  appointment  of  a  receiver,  .  104 

Proceedings,  &c., 104,  105 

Action  by  the  receiver, 106 


INDEX. 


XXI 


Phoceedings  —  Continued.  Page  • 

When  such  action  is  necessary^.  107 
Should  obtain  leave  to  commence,  107 

Costs  in  these  proceedings, 108 

Orders,  how  enforced,    108 

PROPERTY : 

Exempt  from  execution, .  36,  37,  38 
Who  may  claim  the  privilege, ...  39 
What  property  liable  to  levy  and 

sale, ,  34,  35,     36 

Being  levied  upon,  may  be  re- 
ceipted, (fee, 46 

What  constitutes  a  levy  upon,  43,     44 
Sale  of,    under  execution,   how- 
conducted,    50 

Cannot  be  delivered  to  plaintiff 

by  sheriff  without  sale, 51 

Sale  of  real  property  on  execu- 
tion,      53,     54 

What  may,  and  what  may  not, 

be  sold  thus, 53 

Mode  of  procedure  thereunder,  .     54 
Perishable    property,    how    dis- 
posed of,  on  stay  of  execution,  122 


Q. 

QUO  WARRANTO,  ACTION  OF: 

The  remedy  by  action, 175 

Against   corporations,    in    what 

cases, 175,  176 

Leave  to  bring  the  action,  how 

obtained, 1^6 

By  what  court,  &c., . .' 176 

The  practice  in,  &c., 176 

The  summons  and  its  service, ...  177 
The  information  and  complaint,.  177 
Judgment  against,  its  form  and 

nature, 117 

When   of    course,    against  indi- 
viduals, &c., 178 

The  filing  of  the  information  or 

complaint,   178 

When  brought  against  a  person 

for  usurping  office, 179 

Judgment  in  such  actions, 179 

Proceeding  to  compel  the  delivery 

of  books,   &c., 181 

When  a  warrant   may   issue   to 

search  for,  &c. 181 

Action  to  vacate  a  patent, 182 


E. 

REDEMPTION,  RIGHT  OF,  &C. :  Page. 
By  whom  to  be  exercised, ...  59,  60 
Mode  of  acquiring  title  by  redeem- 
ing,    61 

How  made  available, 62 

Effect  of  that  payment, 62 

Where  payment  must  be  made, . .  63 

To  whom  it  must  be  made, 63 

When  to  be  made, 64 

How  time  for  redemption  is  com- 
puted,    65 

Time   for,  may  be   extended  by 

agreement, 65 

On  redemption,  the  certificate  of 

sale  becomes  void, 66 

REDEEMING  CREDITOR: 

Takes  the  place  of  the  purchaser,     65 

RELIEF^  EQtriTABLE : 

When  there  is  no  answer  it  can- 
not exceed  that  which  is  asked,       7 

RESPONDENT : 

In  appeal, 115 

His  appearance 124 


s. 

SALE: 

On  execution, 49 

Of  goods,  &c.,  what  notice  to  be 

given, 50 

How  condtacted, 50 

When    oppressive    may  be    set 

aside, 51 

Not    necessarily    made    to    the 

highest  bidder, 51 

When  to  take  place, 51 

Must  be  at  pubhc  vendue, 51 

Proceeds  of^  how  applied  to  seve- 
ral executions, 52 

Sale  of  real  property  under  exe- 
cution,       54 

Mode  of  procedure  thereunder, 

54,  et  seq. 

Certificate  of  sale, 57 

Effect  of  sale, 75 

Proceeds  of  sale,  how  disposed 

of.    58-60 

Of  mortgaged  premises,   268 

Postponement  of, 268 


zxu 


INDEX. 


8ATISF  ACTION:  Page. 

Of  judgment, 17 

By  satisfictioa  of  execution,  &c.,     18 

When  not, 18 

Effect  of  levy  thereon, 18 

Levy  upon  land  no  satisfcction, 

Ac. 18 

Authority  of  sheriff  to   satisfy, 

Ac., 18 

How  and  when  a  judgment  re- 
covered iu  an  action  upon  a 
judgment  satisfies  the  original 

judgment, 19 

Payment  as  satisfaction, 19 

When  the  taking  the  defendant 

in  execution,  &c.,   19 

For  what,  no  satisfaction,  &c., ...     19 

SECURITY  : 
On  appeal, 119 

May  be  dispensed  with,  how  and 
when, 121 

When  amount  of,  limited  or 
waived,  &c., 121 

Additional,  when  required 123 

SHIPS  AND  VESSELS: 
Proceedings  to  collect  demands 

against, 334 

The  provisions  of  the  statute  in 

such  cases,  334 

The  constitution  of  the  lien  there- 
on,   324 

When  and  how  such  lien  may  be 

constituted, 334,  335 

The  expiration  of  such  lien, 335 

To  what  the  term  "  ship  and  ves- 
sel "  applies, 335 

The  specification  to  be  filed, 336 

Where  the  same  must  be  filed,. .  336 
Warrant  against   ship,  &c.,  may 

be  issued, 336 

When,  where  and  how  applied 

for, 336 

Application  must  be  in  writing,.   337 

Other  requisites  thereof, 337 

The  warrant  of  attachment, 338 

Prerequisites  to  issuing  the  same,  338 
The  execution  of  such  warrant, .  339 

How  it  may  be  discharged, 339 

Bond  to  be  given  and  its  nature,  340 
The  penalty  and  condition  thereof,  340 
Proceedings  where  no  bond  is 
given 340 


Ships  and  vessels  —  Continued.  Page; 

Sale  of  such  vessel, 341 

Notice  of  distribution  of  proceeds,  341 
How  other  claims  are  to  be  es- 
tablished,    341 

How  such  claims  are  to  be  con- 
tested,    342 

The  issue,  how  formed  and  tried, 

342,  343 

Who  may  try  it, 343 

Trial  before  the  judge, 344 

Distribution  of  the  proceeds, ....   344 
Claims,  how  exhibited  and  paid 

on  their  order, 344 

Action  on  the  bond  given  to  dis- 

cliarge  the  warrant, 345 

Preliminaries  to  commencing  such 

action, 345 

Questions  to  be  tried  in  such  ac- 
tion,    346 

Judgment  in  such  action, 346 

Costs  in  such  proceedings, 346 

Such  lien  may  be  assigned, 347 

Proceedings  to  obtain  a  discharge 

of  such  lien, 34t 

Power  of  the  officer  in  these  pro- 
ceedings,    348 

Appeal  in  these  proceedings, 348 

SHERIFF : 

His  authority  to  satisfy  a  judg- 
ment, &c., 18 

Execution  on  judgment  against 
him  and  his  sureties, 32 

Effect  of  putting  an  execution 
into  his  hands, 34 

Upon  what  property  he  must 
levy, 34,  35,     36 

His  liability, 45,     46 

May  take  a  receipt  for  property 
levied  upon, 46 

May  leave  it  with  defendant  at 
his  risk, 46 

If  not  delivered,  must  look  to  his 
receiptor, 46 

His  rights  in  respect  thereto, ...     46 

His  proceedings  when  property 
is  claimed  by  third  persons, ...     41 

When  execution  is  stayed  in  his 
hands, 48 

When  must  take  notice  of  injunc- 
tion,  &c., 48 

His  sale  on  execution, 50 

How  conducted, 50 


INDEX. 


XXIU 


Shertfp  —  Continued.  Page, 

Must  exercise  a  sound  and  just 

discretion, 50 

Sale  of  real  estate,  &c., 54 

Mode  of  procedure, 54 

His  certificate  of  sale, 57 

His  proceedings  where  the  right 

of  redemption  is  exercised,  58,  66 

His  deed  and  its  requisites, . .  66,  67 

STAY: 
Of  execution  on  appeal, ... .  119,  122 

Extent  of, 121 

In  case  of  perishable  property, . .  122 

On  appeals  from  orders, 122 

How  obtained, 122 

SUEETIES: 

In  undertaking  on  appeal, 119 

Must  justify, 122 

Excepting  to,  and  proceedings  on 

excepting, 122 

The  justification  of, 123 

Failing  to  justify,  what, 123 

SURROGATE: 
Order  to  issue  execution  against 

executors,  &e., 24,     28 

How  obtained, 23 


T. 

TORTS : 

In  actions  for  defendants  jointly 
and  severally  liable, 2 


u. 

UNDERTAKING : 

In  appeals,  &c.,  its  requisites, . . .   119 
The  several,  required  may  be  in 

one  instrument, 119 

Must  be  filed  with  the  clerk, ....  119 
Copy  of,  must  be  served  on  attor- 
ney of  the  adverse  party,  ....  119 
May  be  waived  by  written  con- 
sent, &c., 119 

Must  be  filed  in  all  cases, 119 

"When  stay  of  execution  is  de- 
sired, what, 119,  120,  121 

Extent  of  such  stay, 121 

11—61 


UNDERTAKiNa— Continued.  Page. 

When  security  may  be  dispensed 

with, 121 

"WTien    amount    of,    limited    or 

waived,  121 

Must  be  filed  with  the  clerk, ....  121 

Surety  to  justify, 122 

Deposit  in  lieu  of, 124 

UNSOUND  MIND,  PERSONS  OP,  296 


V. 

VENUE: 

To  what  county  an  execution  may 
issue, 20,     22 

May  issue  to  different  counties  at 
the  same  time, 22 

To  what  county,  must  issue 
against  property,  before  issu- 
ing a  ca.  sa., 22 

YOLUNTART  ASSIGNMENTS : 
Requisites  to  the  validity  of  the 

same, 390 

The  accompanying  schedule,. ...  391 
Requisites     ia    respect    to    the 

assignee,  391 

Acceptance  by  the  assignee, ....  391 
What  vests  in  him  by  the  assign- 
ment,   392 

He  takes  subject  to  equities, 392 

Rights  of  the  assignor, 393 

Preferred  creditors, .' 393 

Debtor  in  failing  circumstances, .  393 
In  limited  partnerships,  assign- 
ments giving  preferences  not 

permitted, 394 

Same  in  respect  to  insolvent  cor- 
porations,     394 

Assignments,   when  void    upon 

their  face, 395 

"What  assignments  are  void,. ...  395 

Construction  thereof, 396 

What  will  vitiate  an  assignment,  396 
Authorizing  a  sale  on  credit, ....  395 

The  principle  involved, 396 

Made  with  an  intent  to  hinder 

and  delay  creditors,  &c. 397 

But  power  to  compromise  does 

not  vitiate 397 

Provisions  in  favor  of  the  assignee  397 
When  a  discretionary  power  will 
vitiate, 397 


XXIV 


IJTDEX. 


VoLTiUTART  AssioiorENTS— Cont'd.      Page. 
So  a  clause  therein  exempting  the 
assignee  from  liability  lor  neg- 
lect, &c., 397 

■Wlien  void  upon  extrinsic  evi- 
dence,   397 

"WTiat  must  be  the  intent, 398 

Fraud  may  be  inferred, 398 

A  valid  assignment    cannot  be 

changed,  398 

The    assignee,    his    rights    and 
duties, 398 


VoLTJNTAKT  ASSIGNMENTS  —  Cont'd,    Page 

Bond  of  the  assignee, 398 

Suit  on  the  same,  when  to  be  in- 
stituted,   399 

Duty  of  the  assignee 399 

Compensation, 400 


WASTE : 
Judgment  in,  &c., 10 


IMPARTIAL  OPINIONS  OF  THE  WORK. 


Letter  from  Hon.  Hekkt  Welles,  Judge  of  Supreme  Court. 

I  have  examined  the  New- York  Practice,  by  Tiffany  and  Smith, 
and  am  much  pleased  with  its  general  plan  and  arrangement.  I 
think  it  the  most  systematic  Treatise  wpon  the  Practice  under  the  Code 
that  has  yet  appeared. 

From  Hon.  A.  B.  James,  Judge  of  Supreme  Court. 

From  the  examination  I  have  been  able  to  give  this  volume  I 
am  much  pleased  with  it.  I  think  the  work  will  supply  the  place 
it  is  designed  to  fill,  and  will  furnish  a  safe  and  reliable  guide  to 
the  practioner. 


From  Hon.  Wm.  F.  Alle:?,  Judge  of  Supreme  Court. 

I  have  examined  the  first  volume  of  New- York  Practice,  by 
Messrs.  Tiffany  &  Smith, 

I  think  it  an  excellent  summary  of  the  practice  of  the  Courts 
of  this  State,  in  which  the  general  rules  and  principles  are  clearly 
and  concisely  stated. 

The  authors  have,  I  think,  been  very  successful  in  their  effort 
to  extract  from  the  great  number  of  reported  practice  cases  the 
practice  as  authoraiively  settled  by  the  courts  in  the  proceedings 
treated  in  this  volume. 


Letter  from  Hon.  Chas.  R.  Ingalls,  Judge  of  Supreme  Court. 

I  have  examined  the  New- York  Practice  and  Pleadings,  by 
Messrs.  Tiffany  and  Smith.  The  work  exhibits  unmistakable 
evidence  of  ability  and  fidelity  in  its  preparation  in  regard  to 
matter,  plan  and  execution.  It  cannot  fail  to  be  eminently  service- 
able to  the  legal  profession,  and  will  doubtless  receive  the  encour- 
agement and  support  to  which  its  merits  so  obviously  entitle  it. 


From  Hon.  John  A.  Lott,  Judge  of  Supreme  Court. 

I  have  examined  the  New-York  Practice,  by  Tiffany  and  Smith, 
and  find  it  to  be  a  work  prepared  with  care  and  ability.  It  will  be 
of  great  value  both  to  the  bar  and  bench.  The  practice  is  tuc- 
cinctly  and  clearly  stated  with  a  sufficient  reference  to  the  decisions  in 
support  of  the  positions  and  appears  to  be  laid  down  with  great 

accuracy.  

From  Hon.  Platt  Pottek,  Judge  of  Supreme  Court. 

The  order  and  arrangement  of  the  work  I  like  better  than  any 
of  the  books  of  practice  that  have  preceded  it  since  the  introduc- 
tion of  the  new  system  by  the  Code. 

The  members  of  the  bar,  with  whom  I  have  conferred,  uni- 
formly speak  of  the  work  in  terms  of  high  commendation.  I  be- 
lieve it  will  meet  with  universal  approval. 


Ldterfrom  Hon.  John  W.  Brown,  Judge  of  Supreme  Court. 
I  have  formed  a  very  favorable  opinion  of  the  work.  It  is  not 
(as  some  of  the  books  of  Practice  have  been)  a  mere  collection  of 
the  head  notes  of  the  reported  cases  upon  questions  of  practice 
arransed  under  different  titles,  but  a  descriptive  treatise  divided 
and  distributed  under  appropriate  heads,  in  which  the  thoughts 
and  opinions  of  its  authors  are  given  with  clearness  and  precision, 
imparting  the  requisite  knowledge  with  references  to  the  authori- 
ties for  what  is  said  in  the  text.  In  the  observations  upon  the 
organization  of  the  courts  and  the  origin  of  their  jurisdiction,  in 
the  division  and  distribution  of  the  subjects  of  which  it  treats, 
and  the  manner  of  their  treatment,  and  in  its  reference  to  the 
practice  of  the  courts  before  the  Code,  and  the  forms  of  action 
which  the  Code  vainly  attempted  to  supercede,  I  recognize  some 
of  the  essential  conditions  of  a  work  upon  Pleadings  and  Prac- 
tice which  will  be  acceptable  and  useful  to  the  profession,  and 
guide  them  with  certainty  in  the  conduct  and  management  of  their 
business.  The  Code  of  Procedure  is  not,  and  no  series  of  fixed 
Legislative  enactments  ever  can  be,  a  complete  scheme  of  remedial 
law.  Some  knowledge  of  the  origin  and  early  history  of  the 
courts,  and  the  forms  and  usages  in  which  they  proceeded  to  ad- 
minister justice,  is  indispensable  to  comprehend  and  give  effect  to 
its  provisions.  Cases  constantly  arise  and  will  continue  to  present 
themselves  which  no  human  sagacity  could  foresee,  and  for  which 
the  Code  prescribes  no  rule  and  makes  no  provision.  There  is, 
therefore,  a  constant  need,  in  addition  to  the  Code,  of  a  well  di- 
gested work  upon  Pleadings  and  Practice  which  shall  embody  the 
learning  and  experience  we  have  acquired  under  the  present  sys- 
tem, as  well  as  the  elements  and  outhnes  of  that  which  it  was 
designed  to  displace. 

From  Hon.  E,  Darwin  Smith,  Judge  of  Supreme  Court. 

I  like  its  arrangement  and  plan  very  much.  If  the  work  is 
completed  upon  the  comprehensive  plan  and  in  the  style  of  this 
volume  it  will  be  a  very  valuable  and  compendious  book  of  Prac- 
tice, and  I  think  more  complete  than  any  heretofore  published 
since  the  Code.  The  time,  I  think,  has  arrived  when  a  book  of 
Practice  can  be  written  which  will  tend  to  promote  that  uniformity 
and  certainty  which  the  Judges  have  been  so  desirous  of  securing 
in  the  State.  The  New- York  Practice,  by  Messrs.  Tiffany  and 
Smith,  will  much  subserve  this  end.  The  Practice  may  now  be 
regarded  and  treated  as  settled,  and  may  be  stated  in  a  compact  form, 
as  is  done  in  this  uorJc, 

I  have  no  doubt  the  work  will  be  popular  with  the  profession, 
as  It  clearly  deserves  to  be. 


Froyn  Hon.  Le  Rot  Morgan,  Judge  of  Supreme  Court. 

Compared  with  other  books  of  practice,  since  the  Code,  it  pos- 
Besses    superior  claims   to   the  patronage  of  the  profession.    If 


the  authors  succeed  in  giving  practical  forms  to  meet  the  varions 
remedies  obtainable  in  special  proceedings,  they  will  have  accom- 
plished a  very  necessary  and  desirable  object. 


From  Hon.  Charles  Daniels,  Judge  of  Supreme  Court. 
I  have  examined  the  first  volume  of  New- York  Practice,  by 
Tiffany  and  Smith.     A  work  on  Practice,  blending  as  far  as  possi- 
ble the  former  system  of  law  and  equity  is  much  needed.    This  is 
a  valuable  acquisition  in  that  as  well  as  many  other  respects. 


Letter  from  Hon.  0.  L.  Baebour. 

I  have  examined  with  some  care  the  Practice  and  Pleadings,  by 
Tiffany  &  Smith.  The  plan  and  arrangement  are  admirable.  The 
matter  is  distnbuted  under  the  appropriate  heads  with  great  clearness, 
and  the  tohole  frame  and  structure  of  the  work  indicate  a  thorough  analy- 
sis of  the  sttbject,  and  a  mastery  of  the  topics  treated  ttpon  by  the  authors. 
The  several  steps  occurring  in  the  regular  progress  of  an  action 
are  explained  in  their  natural  and  logical  order ;  while  the  various 
Incidental  Proceedings  and  Provisional  Remedies  receive  their  due 
share  of  attention.  Besides  the  topics  usually  treated  of  in  books 
of  practice  this  work  contains  many  new  ones  which  the  profes- 
sion will  thank  the  authors  for  introducing.  The  book  shows 
learning,  industry  and  ability  on  the  part  of  the  authors,  and  I 
doubt  not  will  prove  an  acceptable  and  a  reliable  guide  through 
the  mazes  of  the  existing  practice. 


From  Hon.  Daniel  P.  Ingkahaji,  Judge  of  Supreme  Court. 

From  the  examination  I  have  been  able  to  give  it,  I  think  the 
work  will  be  found  useful  to  the  practitioner.  Its  arrangement 
appears  to  me  to  be  preferable  to  many  works  of  Practice,  and 
seems  to  have  been  executed  with  much  care  and  research. 


From  Hon.  Henry  Hogeboom,  Judge  of  Supreme  Court. 

I  have  given  some  attention  to  Tiffany  and  Smith's  work  on 
Practice  and  Pleadings  in  Actions  and  Special  Proceedings,  with  a 
perusal  of  which  you  have  favored  me.  I  am  highly  pleased  with 
the  work  so  far  as  it  has  progressed,  and  with  the  plan  on  which 
it  is  moddeled.  The  adjudications  on  qaestions  of  practice  under 
the  Code  of  Procedure  have  become  so  numerous,  and  to  some 
extent  discordant,  that  a  copious  citation  from  them,  or  even  an 
ample  reference  to  them  must  necessarily  swell  any  volume  con- 
taining them  to  an  inconvenient  size,  as  well  as  create  some  confu- 
sion and  embarrassment  from  the  conflict  of  opinion  inevitable 
from  the  numerous  independent  tribunals  before  which  the  ques- 
tions were  raised.  It  was,  therefore,  I  think,  a  judicious  proceed- 
ing on  the  part  of  the  authors  of  this  work  to  make  a  selection 
from  these  decisions  and  to  digest  and  declare  the  true  result  of 


the  best  authorities.  They  appear  to  me  to  have  performed  their 
work  well,  and  so  far  as  I  have  examined,  and  am  able  to  judge,  to 
have  succeeded  in  their  effort  "  to  prepare  a  reliable  treatise  upon  the 
practice  in  the  several  courts  of  record  in  this  State."  The  work  is 
eminently  practical,  the  style  plain  and  concise,  the  matter  well 
condensed,  and  the  arrangement  of  subjects  judicious. 


From  Hon.  Wm,  J.  Bacon,  Judge  of  Supreme  Court. 
I  have  examined  the  New  York  Practice,  by  Tiffany  and  Smith. 
I  am  satisfied  that  it  will  prove  a  valuable  and  useful  work ;  the 
arrangement  is  very  judicious,  and  the  treatment  of  the  topics 
skillful  and  perspicuous.  If  completed,  as  commenced,  it  will 
supply  a  want  felt  by  the  profession,  and  command  their  confidence 
and  patronage.  

From  Peop.  Amos  Dean,  LL.D.,  Albany  Laiv  School 
I  have  received  and  examined  the  New- York  Practice,  by  Messrs. 
Tiffany  and  Smith.    It  seems  to  be  the  very  book  that  has  been  so 
long  desired. 

I  have  never  really  known  what  book  of  Practice  to  recom- 
mend to  the  Law  School,  but  I  shaU  find  no  difficulty  in  such  re- 
commendation in  future. 


From  Hon.  Theodore  Miller,  Judge  of  Supreme  Court. 

I  have  examined  the  first  volume  of  Tiffany  and  Smith's  Treatise 
on  Practice  and  Pleading,  in  this  State,  and  am  gratified  to  say, 
that  it  is  a  highly  meritorious  and  excellent  work.  The  plan  is 
well  arranged  and  the  different  subjects  are  concisely  presented 
and  discussed  with  much  clearness  and  ability. 

The  authors  have  evinced  a  thorough  knowledge  of  the  Practice 
and  an  intelligent  appreciation  of  the  character  of  such  a  work. 
They  have  shown  industry,  discrimination,  and  learning,  in  their 
efforts  to  furnish  a  good  work  on  the  practical  duties  of  the  legal 
profession,  and  have  supplied  a  valuable  acquisition  in  this  depart- 
ment of  the  law.  I  believe  they  are  abundantly  qualified  for  the 
task  they  have  undertaken,  and,  thus  far,  so  admirably  executed. 

The  book  cannot  fail  to  be  of  great  service  to  the  practieioner, 
and  I  doubt  not  will  meet  with  entire  success. 


From  Hon.  Noah  Davis,  Judge  of  Supreme  Court. 
I  have  examined  with  care,  the  first  volume  of  Tiffany  and  Smith's 
New-York  Practice,  and  think  it,  by  far,  the  most  valuable  work  on 
that  subject  that  has  been  published  since  the  Code. 

From  Hon.  Ransom  Balcom,  Judge  of  Supreme  Court. 
I  have  examined  the  N.  Y.  Practice,  by  Messrs.  Tiffany  and 
Smith.     It  is  a  well  arranged  book,  and  I  think  Attorneys  will  find 
it  generally  accurate  and  not  only  convenient  but  very  useful  in 
practice. 


From  William  A.  Beach,  Esq. 

I  have  examined  with  attention  Tiffany  and  Smith's  Practice, 
and  desire  to  express  my  hearty  approval  of  the  work.  Not 
content  with  a  mere  digest  of  authorities,  it  affirms  a  doctrine, 
and  supports  it  with  references  judiciously  arranged.  The  use- 
fulness of  a  book  of  practice  greatly  consists  in  the  clear  and 
decided  announcement  of  a  rule.  We  refer  to  it,  not  as  a  digest, 
but  as  an  authority;  and,  usually,  upon  occasions  when  expedition 
is  desirable.  It  is  annoying  then,  to  be  involved  in  a  labyrinth 
of  citations,  which  delay,  rather  than  facilitate  a  conclusion. 
We  want  the  judgment  of  the  author,  matured,  as  we  have  a 
right  to  assume  upon  examination  and  study,  confiding  in  it, 
and  for  the  moment,  at  least,  purposing  to  trust  in  it.  I  like  this 
work,  therefore,  because  the  author  has  assumed  the  proper  respon- 
sibility of  his  vocation,  manifesting  that  he  has  studied  his  subject 
sufficiently  to  venture  to  do  so.  It  has  struck  me  that  the  plan  of 
the  work  in  this  respect  is  very  much  like  that  adopted  by  Prof. 
Parsons,  in  his  various  publications.  The  principle  is  to  affirm  a 
rule,  and  supply  the  student  with  ready  means  of  testing  its 
soundness,  so  that  upon  emergnecy,  if  we  confide  in  the  ability  of 
the  author,  we  may,  without  further  examination,  trust  to  his  teach- 
ings. 

Knowing  its  authorship,  I  am  assured  it  is  not  a  catch-penny 
afiair,  but  is  a  studious  and  discreet  hand-book  of  practice. 

I  shall  have  no  hesitation  La  confiding  in  this  work. 


From  Hon.  Deodatus  Weight,  Judge  of  Supreme  Court. 

I  have  examined  Tiffany  and  Smith's  "New-York  Practice," 
•with  care,  and  do  not  hesitate  to  say,  that  in  my  opinion,  it  is  the 
best  work  of  practice  ever  written  and  published  in  this  State. 


From  Hon.  John  K.  Porter,  Judge  of  Court  of  Appeals. 
I  have  read  with  much  interest  the  proof  sheets  of  the  second 
volume  of  the  New-York  Practice.  They  [exhibit  the  same  terseness 
and  perspicuity  which  commended  the  preceding  volume  to  the 
general  favor  of  the  profession.  The  work  is  opportune.  The 
conflict  of  decision,  in  the  earlier  adjudications  on  questions  o 
practice  under  the  Code,  led  to  much  confusion  and  uncertainty. 
From  the  peculiar  character  of  our  new  judicial  system,  and  the 
variety  of  tribunals  exercising  co-ordinate  jurisdiction,  the  courts 
as  well  as  the  profession,  were  for  a  long  time  adrift  Full  discus- 
sion and  comparison  of  judicial  opinions  have  at  length  done  much 
to  settle  a  system  of  practice,  in  the  main,  simple,  homogeneous 
and  uniform.  The  writer  of  a  treatise  on  this  branch  of  the  law 
has  a  great  advantage  [now,  over  those  who  undertook  the  same 
task  at  an  earlier  period,  embarrassed  by  discordant  decisions, 
and  unaided  by  the  subsequent  labors  of  the  judiciary,  which  have 
finally  evolved  order  out  of  confusion.    What  we  needed  wa?,  a 


work  embodying  the  rcsulis  of  all  these  labors,  and  Messrs.  Tiffany 
&  Smith  have  supplied  this  demand.  Their  treatise  gives— just 
what  the  student  and  the  practising  lawyer  alike  need  to  know — 
the  existing  state  of  the  law.  It  accepts  what  the  courts  have 
settled,  without  needless  details  of  the  process  by  which  it  came  to 
be  settled.  The  arrangement  of  the  work  is  clear  and  lucid.  The 
directness,  precision  and  brevity  of  the  style  will  arrest  the  attention 
of  every  reader.  What  the  volumes  contain,  can  be  found  at  once. 
The  topics  are  not  blended,  as  we  too  often  find  them  in  text-books. 
One  is  not  compelled  to  read  a  chapter,  for  information  which 
should  be  contained  in  a  sentence  or  a  paragraph.  It  is  a  time- 
savins,  practical  work,  worthy  of  the  high  reputation  of  its  authors, 
and  it  will  be  heartily  welcomed,  by  the  judges  no  less  than  the 
bar,  as  a  valuable  accession  to  our  libraries  iu  this  department  of 

the  law.  

From  Hon.  Geo.  Gould,  Judge  of  Supreme  Court. 
I  have  examined  with  care,  the  first  half  of  Tiffany  &  Smith's 
Treatise  on  Practice  and  Pleadings,  and  think  the  arrangement 
decidedly  well  conceived  and  well  carried  out. 
The  book  cannot  fail  to  be  highly  useful. 


From  the  New- York  Times. 
This  book  cannot  fail  to  receive  the  universal  favor  of  the 
legal  profession.  It  evidently  has  been  prepared  with  great  care, 
and  by  authors  who  wield  polished  pens.  The  fault  with  most 
works  of  practice  consists  in  giving  a  list  of  conflicting  authori- 
ties, leaving  the  practitioner  to  grope  his  way  in  the  dark,  as 
to  any  settled  rule  of  practice.  The  authors  of  this  book  have  had 
the  boldness  to  speak  of  the  practice  as  settled,  and  to  point  out  to 
the  practitioner  the  true  and  safe  path  to  take  in  pursuing  lenal 
remedies.  There  is  inuch  in  the  work  which  can  be  found  in  none 
other.  It  assumes  in  the  beginning  that  no  person  can  acquire  a 
thorough  knowledge  of  the  present  system  of  practice  without  un- 
derstanding the  former  system.  It  therefore  presents  a  concise  and 
clear  statement  of  the  ditferent  forms  of  action  at  common  law  as 
well  as  the  former  cliancery  practice.  The  theory  presented  is, 
that  the  code  has  abolished  all  distinctiim  between  mere  forms 
of  action,  while  the  intrinsic  differences  remain  the  same  as  under 
the  former  system.  Tlie  time  has  arrived  when  the  practice  in  this 
State  may  be  regarded  as  settled,  and  we  think  every  lawyer  and 
judge  has  felt  the  importance  of  having  some  woik  on  practice  like 
the  one  before  us,  which  would  assert  some  positive  rule  of  action, 
and  support  it  iu  such  a  manner  as  to  inspire  conlideuce  in  the 
author's  judgment,  instead  of  leaving  the  anxious  inquirer  in  the 
mist,y  haze  of  a  mass  of  conflicting  authorities,  as  some  former  works 
of  practice  have  done.  The  student  can  learn  from  this  work  not 
only  what  to  do  but  how  to  do  it.  The  chapters  on  appeals  and 
costs  are  especially  to  be  commended.  The  law  of  costs  (always 
a  subject  of  interest  to  the  lawyer)  is  presented  in  the  clearest  and 
most  logical  manner.  The  authors  seem  to  have  i)r>'seulpd  the 
law  to  meet  the  requirements  of  every  conceivable  question  of 
costs.  Jlost  of  the  special  procecdiiigs  under  our  statutes  are  also 
treated  upon  in  this  work.  It  should  receive  a  personal  axamina- 
tion  from  every  student  and  lawyer  in  this  State,  and  in  those 
States  having  a  code  Uke  our  own.' 


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